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NSA Wiretap Issue Isn't Dead Yet


The Sixth Circuit's decision last week to dismiss a lawsuit brought over the NSA warrantless wiretapping program doesn't end the litigation in the courts.

At least one other suit is pending, and standing to bring the lawsuit isn't at issue and and thus is unlikely to be the basis for dismissal.

Readers may remember that Albany, NY defense lawyer Terry Kindlon, raised a similar challenge to the wiretapping in United States v. Aref (the so-called "terrorism" case from the Northern District of New York).

In December, 2005, while Aref's case was pending, Terry learned from a New York Times article that his client had been tapped by the NSA. He immediately made some demands, followed up with some motions and, basically, got nowhere (although he did enjoy receiving a Government pleading containing a caption at the top of the first page, a signature at the bottom of the third page, and nothing but blank space (marked CLASSIFIED) in between).

More...

Terry filed a writ of mandamus in the Second Circuit and it was dismissed as premature.

In October, 2006, Terry's client in the case, Mr. Yassin, was convicted of 20 out of 30 counts and was sentenced to 15 years.

Terry's appellate brief is now almost done and he expects to file it shortly -- as soon as he can whittle it down to an appropriate length from its current 215 pages.

One of the major points in the Yassin brief is the illegality of the NSA warrantless wiretaps. In light of the 6th Circuit dismissal, Terry's case may be first in line to have the issue reviewed by a mid-level appellate court.Again, under the facts and circumstances of the case, it is extremely unlikely that standing is going to be a problem.

Terry would like it known that " If anybody wants to file an amicus brief we would rejoice." Terry's contact information is available here.

As another one of our defender friends says, "The Fourth Amendment is not dead, it's just sleeping..." Terry believes it's time we woke it up.

Note to Terry: I hope this and this are going to be appellate issues in the case as well.

[A guest post by Terry on the issue of our how we treat our returning soldiers in which he describes his background is here. And don't get him started on Fallujah.]

< NY Times News Pages: Mouthpieces for Bush Administration | Lawyer Asks Bush: What About My Client? >
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  • Display: Sort:
    The Supreme Court (5.00 / 1) (#1)
    by TomStewart on Sun Jul 08, 2007 at 12:52:06 PM EST
    The SCOTUS is waiting, and these cases will no doubt get there one way or another. I have little faith in their ability to see past their own partisan agenda and rule in favor of the Constitution. The Roberts court has shown little enthusiasm to do so in the past.

    Greenwald (5.00 / 1) (#2)
    by wg on Sun Jul 08, 2007 at 03:40:10 PM EST
    All this is desperately trying to find a hidden entry into the judicial system that's been designed specifically to prevent cases of this type ever seeing a day in court. Hopeless I say.

    Greenwald's recent piece on the subject is a good place to see it.

    His major point is the Sixth Circuit's decision was correct, the claimant had no standing and giving courts the right to hear cases where clear standing is lacking is simply too dangerous.

    Too dangerous even when the final outcome is that the administration will be able to engage in illegal conduct and, as long as they do it surreptitiously, never to be forced to answer for it in courts.

    Strange calculation to an outside observer. Very strange.

    For example Europeans would argue that in their systems the courts have been widely open for many decades (very relaxed, to no standing requirements) and nothing bad has ever happened. We counter by pointing out that:

    a) European judiciaries are entirely professional while we here are anything but with the result that many benches in this country are occupied by certifiable yahoos and wackos and you don't want them to pronounce on matters of national importance,

    and

    b) the present state of European judiciary is a relatively recent democratic development, while ours is a 200 years old basically feudal British system that changed very little in the intervening centuries other than to acquire more powers and perks. The entire "culture" of our system is still very much that of medieval overlords as arrogant and overbearing as they've ever been, no present day European/British democratic airs evident anywhere on these shores.

    So to Greenwald the idea of giving our judiciary still more powers is simply not acceptable, he fears them too much.

    While I basically share his fears, I fail to see much danger in this specific case for nobody argues for changing standing criteria across the board.

    What is called for is the ability for certain people/institutions to bring questions of national/constitutional importance before a special court or tribunal to decide. Such powers need be limited, say, to the President so he can defend himself from overreaching Congress and to a group of senators (10 at least) so they can ask courts to pronounce on legality/constitutionality of anything the administration does.

    This arrangement has been standard in European coutries for decades to their great benefit, we have nothing similar with the result that  administrations can engage in illegal behavior and nobody, but nobody can do anything about it.

    This is simple unacceptable. The country needs to do something about it.

    wg (none / 0) (#3)
    by jimakaPPJ on Mon Jul 09, 2007 at 03:07:10 PM EST
    You seem rather eager to give up your liberty...

    appointed.... special people...

    I thought that would the least of what you would want.

    [ Parent ]

    the topic is the NSA illegal wiretaps (none / 0) (#4)
    by Sailor on Mon Jul 09, 2007 at 04:01:18 PM EST
    try to stay on topic and not make personal attacks.

    [ Parent ]