home

2nd Cir. Refuses to Require Gov't to Address NSA Surveillance

The Second Circuit Court of Appeals has denied Albany, NY defense lawyer (and TalkLeft commenter) Terry Kindlon's appeal of a secret court order refusing to make the Government admit or deny that it engaged in illegal warrantless electronic surveillance of his client, an Iman at a mosque charged with money laundering. You can read the opinion here.

As background, Terry was the first lawyer in the U.S. to challenge the NSA warrantless surveillance program. His motion alleged:

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

Other lawyers began following suit. US News and World Report reported on the legal challenges at length, quoting Terry as saying he got the idea from TalkLeft.

The government has two weeks to respond to Kindlon's motions, which he says were inspired by a popular liberal criminal defense website, TalkLeft.com, created by Denver, Colo., defense attorney Jeralyn Merritt--one of Oklahoma bomber Timothy McVeigh's principal trial lawyers. Now others, like Chicago public defender Mary Judge, are learning from Kindlon.

The post I wrote about possible legal challenges to the NSA warrantless surveillance program is here. I suggested filing a motion under 18 U.S.C. Section 3504.

(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States--

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;

(b) As used in this section "unlawful act" means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

The Government filed a response to Terry's request to affirm or deny the NSA wiretapping but designated it classified and had it sealed. The Judge ruled for the Government but refused to share his reasons -- he designated his order "classified" and sealed it.

Terry tried to get the Appeals court to order the Judge's secret order disclosed. But the Second Circuit rejected all of his requests, holding that mandamus, in which an appeals court is requested to order a lower court to do something, is an extraordinary remedy and because Terry's client can file a direct appeal on the issue if he is convicted at trial, it's not warranted in the case.

As I wrote here quoting a Times Union article no longer online, Terry was not grasping at straws:

Aref's attorney, Terence L. Kindlon, and Hossain's attorney, Kevin Luibrand, cite a New York Times story two months ago that said unnamed sources confirmed warrantless wiretaps may have helped trigger interest in Aref by the FBI. If that's true, Kindlon said, the entire case should be thrown out of court.

What's the point of having a statute like 18 U.S.C. Sec. 3504 if the Government doesn't have to comply with it?

< Weekend Duke Open Thread | Iraq to Submit Peace Plan with Troop Withdrawal Date >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    Re: 2nd Cir. Refuses to Require Gov't to Address (none / 0) (#1)
    by Talkleft Visitor on Fri Jun 23, 2006 at 10:40:28 PM EST
    What's the point of having a statute like 18 U.S.C. Sec. 3401 if the Government doesn't have to comply with it? Did you mean 3504? What is the effect of the 2nd Circuit's opinion on the other cases that have been filed? Can the arguments for those cases be modified to take into account the critiques of this opinion?

    Re: 2nd Cir. Refuses to Require Gov't to Address (none / 0) (#2)
    by Talkleft Visitor on Sat Jun 24, 2006 at 12:22:22 AM EST
    I need to say the eff word.

    Re: 2nd Cir. Refuses to Require Gov't to Address (none / 0) (#3)
    by wg on Sat Jun 24, 2006 at 01:00:12 AM EST
    Technically speaking requirements of 18 U.S.C. § 3504 have been satisfied. Appeal has been denied on similarly technically sound grounds. What exactly is the beef here?

    Re: 2nd Cir. Refuses to Require Gov't to Address (none / 0) (#4)
    by wg on Sat Jun 24, 2006 at 03:49:40 AM EST
    The court invoked U.S.C 18 App. §3 ( Classified Information Procedures Act): Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States. I guess Biden and Kennedy who originated this language in 1979 had no idea that in 2006 judges of the second district would read it as allowing them to issue preemptive protection orders. The plain reading of the above is that the disclosure to defendants of any relevant information, classified or not, is mandatory not optional. Biden and Kennedy called for protection of classified information after it was disclosed to defendants not before. The decision is not surprising given panel composition, all of them hard-line GOP-ers. See for example "Renew America" on one panelist. Here is a suggestion for petitioners. Talk to Biden and Kennedy to see if there is anything they can do to re-impress on the second district the original meaning of their statue.