Secret Justice

March 11, 2006 10:04 AM

Newsfilter: Secret arrests, secret renditions, secret interrogations in secret jails, and now, secret rulings from US federal judges. More fallout from the Bush administration's NSA domestic-spying program [recently discussed here].
posted by digaman (70 comments total)

More on the original case here.
posted by digaman at 10:05 AM on March 11, 2006

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way.

The defense lawyers had asked the judge to dismiss the case, saying that they believed the government's evidence came from wiretaps obtained without a warrant by the National Security Agency... The classified order by Judge Thomas J. McAvoy of United States District Court for the Northern District of New York came only a few hours after the government filed its own classified documents to the judge... The prosecutors asked the judge to review their papers in his chambers without making them public or showing them to the defense. At midafternoon the judge issued a document announcing that he had entered the classified order denying Mr. Kindlon's request.
posted by digaman at 10:10 AM on March 11, 2006

Interesting. Although in this case it would show that the program was not that useless as it was at least able to uncover someone willing to helping out terrorists if asked.

Just out of curiosity, though, how is this not entrapment?
posted by delmoi at 10:15 AM on March 11, 2006

A secret ruling. In the United States. Laws you're not allowed to know, rulings against you that you're not allowed to see.

That judge has done more damage to this country than terrorists could ever do.
posted by Malor at 10:33 AM on March 11, 2006

Interesting. Although in this case it would show that the program was not that useless as it was at least able to uncover someone willing to helping out terrorists if asked.

Surely the judges ruling would indicate that evidence from warrantless wiretapping was not involved?
posted by cillit bang at 10:34 AM on March 11, 2006

Every time I read one of these articles, I want to weep. I don't care how guilty the accused are, THIS IS NOT WHAT AMERICA IS ABOUT!

Secret trials? Secret decisions? How in the holy hell are we supposed to have open, fair trials when the government pulls this crap? THESE ARE PRECEDENTS BEING SET! Sure, it's for Muslim terrorists now, but who's it going to be for in ten years? Drug users? Women who got abortions? Jaywalkers?

We rebelled against England to get away from this! Do the words "Star Chamber" mean anything to ANYONE any more?

Apparently not.
posted by InnocentBystander at 10:39 AM on March 11, 2006

The secrecy of the judge's ruling practically confirms that it was. But who knows? Only the judge, and Bush's secret police.
posted by digaman at 10:40 AM on March 11, 2006

You think it's going to take ten years, IB? I think not.
posted by digaman at 10:41 AM on March 11, 2006

Halliburton subsidiary KBR awarded $385 million to build detention centers on US soil in case of "immigration emergency" or "other programs" that require "expansion."
posted by digaman at 10:51 AM on March 11, 2006

The U.S consitution is being destroyed piece by piece. I have no particular opinion whether these two guys are guity or not, but I'd like to see a fair trial.

All I can say is this. Terrence Kindlon is one of the top criminal defense lawyers in Albany (others being E. Stewart Jones and Steve Coffey). The defendants ARE getting top notch legal representation. It must be costing a friggin' fortune.
posted by bim at 11:04 AM on March 11, 2006

And there goes the 6th Amendment. So, 4, 5, 6 and 8 are now clearly dead letters, and they're working hard on 1, 9 and 10. Pretty soon, they'll be knocking on your door for beds and guns.
posted by eriko at 11:04 AM on March 11, 2006

Wait a minute. I call BS on your rant. This is the kind of mechanism so many of you claim should be employed with the NSA survellance activities. And, as is mentioned, the Defendants have counsel.

So, what do you want, all trials on Court TV?!

WTF?!
posted by ParisParamus at 11:08 AM on March 11, 2006

reductio ad absurdum, PP, and because we're talking about the Constitution, the stakes are too high for me to entertain you in that little game.
posted by digaman at 11:12 AM on March 11, 2006

Paris, when the defendants and their counsel don't have access to the reasoning behind a judge's decision, only to the decision itself, there's a problem with transparency. Nobody's asking for the decision to be made public - judges place them under seal all the time, which means that only the defendants and plaintiffs (and counsel) can see them - but this is something else entirely. One side knows something the other doesn't, and that hardly forms the basis for a fair dispensation of justice.
posted by aberrant at 11:12 AM on March 11, 2006

yadayadayada, how many reasons do you need for an impeachment? why are these arshats still in office?
posted by borq at 11:16 AM on March 11, 2006

borq: how is this a reason for impeachment? GWB isn't even involved. As much as I'd like to throw these guys out of Washington, there's no basis for that action in this report.
posted by aberrant at 11:20 AM on March 11, 2006

(now, the NSA wiretap thing might be a reason on its own merits, but that's not the focus of the linked article.)
posted by aberrant at 11:20 AM on March 11, 2006

Meanwhile...

"The bill would make it a crime to tell the American people that the president is breaking the law, and the bill could make it a crime for the newspapers to publish that fact."
posted by digaman at 11:33 AM on March 11, 2006

GWB isn't even involved.

Sorry, but this is laughable. The actions of Bush's administration -- including his personal caddy Attorney General, Alberto Gonzales -- created the legal climate for illegal spying covered up by secret rulings.
posted by digaman at 11:38 AM on March 11, 2006

Poetry interlude -->

NO PRESIDENT'S STATUE ESCAPES

From those infallible pigeons
Clara Sandoval used to tell us:

Those pigeons know exactly what they're doing

~ Nicanor Parra, Antipoems
posted by bim at 11:40 AM on March 11, 2006

nice, bim.
posted by digaman at 11:41 AM on March 11, 2006

i love it bim
posted by H. Roark at 11:51 AM on March 11, 2006

"The bill would make it a crime to tell the American people that the president is breaking the law, and the bill could make it a crime for the newspapers to publish that fact."

nice hysteria-mongering here, digaman. Note that the bill's sponsors specifically state that reporters are exempt, and that any changes that need to be made to the bill to protect reporters will be made. Do you really think this has a chance of passing without those provisions? Both supporters and opponents call the bill unconstitutional without that exemption.
posted by aberrant at 11:51 AM on March 11, 2006

Laws you're not allowed to know, rulings against you that you're not allowed to see.

That judge has done more damage to this country than terrorists could ever do.

Absolutely. So this is democracy huh? What a joke.
posted by j-urb at 11:51 AM on March 11, 2006

Halliburton subsidiary KBR awarded $385 million to build detention centers on US soil in case of "immigration emergency" or "other programs" that require "expansion."

Oh my God. They're building concentration camps.
posted by EarBucket at 11:59 AM on March 11, 2006

Secret justice isn’t just, nor anything to do with a democratic government. The Bush administration has embraced totalitarianism and clearly hopes well all sleep through their fascist wet dream.

Does anybody really think this Neocons cabal will relinquish power now that they have us so firmly in their claws? What do think Bush really means by “staying the course?” Think of the money Halliburton is making. Think of the investigations Republicans would have to endure if the people got the government back in 2006. They won’t go softly, it'll be ugly, hence the secrecy.

To be free people again we have to fight for it. Leave your huts and villages, storm the precincts, and haul the rigged voting machines off to the nearest landfill. The time for talking is done. But where, in this day and age, are we going to find enough torches and pitchforks?
posted by BillyElmore at 12:00 PM on March 11, 2006

aberrant, forgive me if I'm not much comforted by the sponsor of a bill designed to quash public discussion of the most outrageous domestic abuse of civil liberties that I've seen my lifetime adding, after the fact, that the bill may see some "technical changes" designed to protect reporters before it passes.
posted by digaman at 12:04 PM on March 11, 2006

Even if the Republicans were routed in the November midterms, and a Democratic administration got in by a landslide in 2008, it seems like the damage done by this administration goes to the bone - so deep that even a change of government might not be able to fix it.
posted by slatternus at 12:05 PM on March 11, 2006

haul the rigged voting machines off to the nearest landfill.

That's a good place to start. Can someone please explain to me, as a non-American, WTF is wrong with simple paper ballots and pencils?
posted by slatternus at 12:07 PM on March 11, 2006

They leave a paper trail.
posted by digaman at 12:08 PM on March 11, 2006

digaman: I share your concerns about the bill, but let's at least present it honestly. Now we've got EarBucket wailing about concentration camps. Try not to scare the kids, mmkay?
posted by aberrant at 12:10 PM on March 11, 2006

I suggest all of us malcontents consider for a moment where in the world we might have friends to rely on, and where we might be made welcome, should the need arise for the liberal intellectual middle class to flee a fascist United States that has become hazardous to our health.
posted by mrmojoflying at 12:12 PM on March 11, 2006

On the contrary, aberrant. I think most Americans are under-vigilant regarding these developments.

Do you know why KBR is building those detention centers? Oh yes, in case of "immigration emergency" -- 10,000 Cubans suddenly washing up in Miami Beach on rafts? -- or, er, "other programs."

I think people should be very aware of these things.
posted by digaman at 12:16 PM on March 11, 2006

Please consider moving to Canada. We welcome not only refugees from all over the world, but we could only benefit from an influx of educated liberal minded cosmopolitan young people. We have a high standard of living, and until America invades us, a generally tolerant and peaceable multicultural society that seems to work reasonably well. And though we've just elected a Conservative goverment on "probation", our conservatives are more liberal in some ways than your democrats.
posted by slatternus at 12:17 PM on March 11, 2006

Canada's too damn cold. Any more moderate (politics and temperature) climates around? How's Australia?
posted by aberrant at 12:22 PM on March 11, 2006

aberrant writes "nice hysteria-mongering here, digaman. Note that the bill's sponsors specifically state that reporters are exempt, and that any changes that need to be made to the bill to protect reporters will be made. Do you really think this has a chance of passing without those provisions? Both supporters and opponents call the bill unconstitutional without that exemption."

I wonder how they are going to determine who a "reporter" is?
posted by Mitheral at 12:24 PM on March 11, 2006

digaman: In the absence of any other FACTS, we have to assume that KBR is building these detention centers for the reason they state they're building these detention centers:

KBR would build the centers for the Homeland Security Department for an unexpected influx of immigrants, to house people in the event of a natural disaster or for new programs that require additional detention space, company executives said. KBR, which announced the contract last month, had a similar contract with immigration agencies from 2000 to last year.

Another thing to note: while this is a new contract, it's a repeat of a contract that has been in place since 2000 (under the previous administration, FWIW).

I'm not a KBR apologist, but damn, the tinfoil-hat crowd here is off their meds today.
posted by aberrant at 12:25 PM on March 11, 2006

somewhere, a young insurance clerk is laughing his Prozac-deprived ass off thinking about all this
posted by matteo at 12:59 PM on March 11, 2006

Canada's too damn cold. Any more moderate (politics and temperature) climates around?

Ha! Just wait another ten or twenty years. The change in climate patterns will make Canada look like paradise compared to the U.S. Unless you like spring tornados, seasonal cat-5 hurricanes, and stifling, stroke-inducing summers.
posted by Civil_Disobedient at 1:21 PM on March 11, 2006

Sorry, aberrant, but that "tinfoil-hat" trope -- so effective at quelling discussion of the real reasons for going to war -- has been permanenly disabled by the actions of this administration.

Lying about WMDs?
Distorting intelligence?
Secret torture?
Spying on Americans?
No vision for post-"Shock and Awe" Iraq?

Each of these things has come true.
posted by digaman at 1:42 PM on March 11, 2006

Please consider moving to Canada.

Sorry. Canada has oil, but refuses to build nuclear weapons. Therefore, Canada isn't safe.

Get real, my northern friends. That evil nation you keep telling us about? It's *RIGHT NEXT DOOR*, and if they decide to make your life as much of a hell as they are making ours, you are just as incapable of stopping it as we were.
posted by eriko at 2:11 PM on March 11, 2006

So, what do you want, all trials on Court TV?!

No. But maybe, at least, granting the defendant and their legal assistance have the right to, you know, actually read the judge's decision and basis for it.

Otherwise, welcome to the world of Magic-8-ball "justice."
posted by namespan at 2:12 PM on March 11, 2006

It's times like this I wish I were a religious man.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
posted by rxrfrx at 2:17 PM on March 11, 2006

Remember the 5th of November?
posted by archae at 2:28 PM on March 11, 2006

Interim, non-final decision, I believe. I'd like to hear more about this before deciding it's unconstitutional.
posted by ParisParamus at 2:45 PM on March 11, 2006

counsel don't have access to the reasoning behind a judge's decision

What legal principle requires a judge explain their reasoning?
posted by rough ashlar at 2:53 PM on March 11, 2006

rough ashlar: apparently none, or the judge wouldn't have been able to suppress it in this case. However, my point was this: one side has knowledge that the other doesn't. That is, by the very definition of the word, unfair. Somehow I feel more alarmed when it's the prosecution that has the information that they're refusing to divulge (and which forms the reason behind the judge's refusal to explain the reasoning behind his decision, if you read between the lines of the linked article). "I'm going to make a judgement, but I'm not going to tell you why because the other side has given me confidential information" is hardly indicative of a fair, open, and transparent justice system from which both sides benefit.
posted by aberrant at 3:01 PM on March 11, 2006

Much more distressing to me is the probability that the reason the finding is classified is that it invokes a much larger, classified wiretapping program focused on domestic surveillance.
posted by digaman at 4:34 PM on March 11, 2006

digaman: that's what's worrisome to me as well. Especially if the wiretapping turns out to be illegal. Then what you've got is a cascade of bad decisions based on something that was against the law.
posted by aberrant at 4:37 PM on March 11, 2006

Aberrant, was the secret info not disclosed to the defense, or was the rationale behind the decision not disclosed? Judges don't always explain their reasoning; implicitly, if the prosecutor either orally argued, or put in papers, then the defense heard the argument.

We don't have all the facts here about the procedure, so stop talking out of your asses. Wait till we know more.
posted by ParisParamus at 4:41 PM on March 11, 2006

This is not a FISA court and it's questionable that, outside of such a context, a judge has the authority to classify anything. Nor is it likely that the NSA or any other executive branch agency can order this judge to classify his ruling. If I'm wrong, please correct me. So the use of the term "classified" seems, if not outright incorrect, legally dubious.

If I was the defense lawyer I'd be petitioning the Second Circuit for a writ of mandamus. There are extraordinary due process issues here. If the losing party can't have access to the record of the case or the basis for a judge's decision, he can't mount an appeal.
posted by Saucy Intruder at 4:46 PM on March 11, 2006

so stop talking out of your asses.
posted by ParisParamus at 4:41 PM PST on March 11

You owe me a new keyboard due to the spit-take.
posted by rough ashlar at 4:47 PM on March 11, 2006

PP: did you read the article?

Because the ruling was classified, the defense lawyers were barred from reading why the judge decided that way.

and

The prosecutors asked the judge to review their papers in his chambers without making them public or showing them to the defense. At midafternoon the judge issued a document announcing that he had entered the classified order denying Mr. Kindlon's request.

So, it appears that your questions are answered: the prosecution presented classified information in chambers, the judge used that information to render a decision, and neither the classified information nor the rationale for the decision was made available to the defense.
posted by aberrant at 4:57 PM on March 11, 2006

And as a preemptive measure against your next argument:

As of late yesterday, Mr. Kindlon, even though he has a federal security clearance to represent Mr. Aref in the trial, had not been able to see the substance of the ruling.

So it's not a matter of the defense lawyer not having the necessary security clearances.
posted by aberrant at 5:00 PM on March 11, 2006

Indeed.
posted by digaman at 5:09 PM on March 11, 2006

I read the article, but candidly, I don't know enough about criminal procedure to pass judgment on this. What is clear is that it's not a final decision, and if the judge acted improperly, I'm not sure if an appeal can be had until later in the proceeding.

My point is not to say this is Kosher, just that judgment should be witheld. And that comments crying THE CONSTITUTION IS DEAD in a Metafilter thread are to be taken with a grain of salt (kosher or not).
posted by ParisParamus at 5:21 PM on March 11, 2006

The scientific jury's still out on global warming too.
posted by digaman at 5:26 PM on March 11, 2006

How is it clear that this is not a final decision? Can motions for dismissal be appealed? (IANAL)
posted by aberrant at 5:46 PM on March 11, 2006

I would think not being able to see the ruling might make mounting an appeal pretty daunting.
posted by digaman at 5:55 PM on March 11, 2006

Then, PP, we will be very happy to see you refraining from comment in any *other* legal thread, ever.

Thanks!
posted by InnocentBystander at 6:03 PM on March 11, 2006

.
posted by bim at 6:07 PM on March 11, 2006

but candidly, I don't know enough about criminal procedure to pass judgment on this

Or perhaps you're so gleeful in giving a free pass to whatever Constitutional travesty which makes it to the Blue that you'd rather not direct the keen powers of intellect and deduction we've seen you exercise before on something that might make your previous statements in support of anything and everything even tangentially related to the current administration look, well, more than a little stupid.
posted by Civil_Disobedient at 6:59 PM on March 11, 2006

DeWine is co-sponsoring the bill with Sens. Olympia Snowe of Maine, Lindsey Graham of South Carolina and Chuck Hagel of Nebraska. The White House and Republican Senate leaders have indicated general support, but the bill could face changes as it works its way through Congress.

That list is missing only Lincoln Chafee. Boy, those are the, ahem, maverick independents of the Senate Republicans. Scary in both red pill or blue pill form and any number of alternate realities. Did they all gets horse's heads in their beds or were they just drinking the Sugar Free Koolaid all along ?
posted by y2karl at 8:43 PM on March 11, 2006

In other news: Patriot Act Partly Blamed in Madrid Case
posted by homunculus at 9:20 PM on March 11, 2006

So, KBR is building some kind of detention centers, for some purpose or another. Wow. Did y'all hear about his wacko Democrat senatorial candidate, from Toledo, who wants Gay folks executed?

It's a real shame that so many Americans have become either totally stupid or are simply paying no attention. Or, in too many cases, the degree of outrageousness is so huge that stuff just gets assigned 'tin-foil hat' material.
posted by Goofyy at 10:29 PM on March 11, 2006

Goofyy, I'm trying to draw a parallel between KBR and Mr. Keiser, but it's not working. How 'bout an assist?
posted by aberrant at 11:03 PM on March 11, 2006

any changes that need to be made to the bill to protect reporters will be made.

Unless they 'forget' to.
posted by Kirth Gerson at 12:40 PM on March 12, 2006

Feingold Will Introduce Resolution To Censure President Bush
posted by homunculus at 1:13 PM on March 12, 2006

“This is a court of law, young man, not a court of justice.” --Oliver Wendell Holmes, Jr.
posted by incongruity at 6:45 PM on March 12, 2006

Where does the judge get the juice in the first place to do this? If he’s acting improperly couldn’t they call him on it?
posted by Smedleyman at 6:54 AM on March 13, 2006