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Court Finds N.S.A. Phone Data Gathering Program Illegal

A three-judge panel of the Second U.S. Circuit Court of Appeals ruled on Thursday that the National Security Agency’s once-secret, bulk gathering of phone records of millions of Americans is illegal under the USA Patriot Act, the nation’s main counterterrorism law.

nsa_logo-100043212-large“The government takes the position that the metadata collected — a vast amount of which does not contain directly ‘relevant’ information, as the government concedes — are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant,” the court said, according to The Washington Post. 

“We agree with appellants that such an expansive concept of ‘relevance’ is unprecedented and unwarranted.” Plaintiffs included the American Civil Liberties Union. Read more

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Friday Gavel Grab Briefs

In these other dispatches about fair and impartial courts:

  • “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” retired U.S. Supreme Court Justice Sandra Day O’Connor said in a speech in Boise, Idaho, according to the Idaho Statesman. She founded, an online civic education program. Justice O’Connor recently joined Justice at Stake as its first honorary chair.
  • The federal government will declassify some sections of certain secret opinions issued by the Foreign Intelligence Surveillance Court regarding U.S. power to seize records under the USA Patriot act, according to the Associated Press.
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Lawsuit Seeks End to NSA Phone Data Collection Program

The American Civil Liberties Union has filed a lawsuit challenging the constitutionality of a National Security Agency phone data collection program that was the subject of a leak to news media last week, which in turn ignited controversy over the court-approved program.

The lawsuit seeks an end to the “metadata” collection program (see Gavel Grab) and a purging of records that the government has collected under it, according to a Washington Post article.

According to a New York Times article, the challenged effort was launched as part of the George W. Bush administration’s surveillance programs conducted without court approval, and it “has continued since 2006 with the blessing of a national security court” under the USA Patriot Act. That secretive bench is called the Foreign Intelligence Surveillance Court.

A New York Times editorial said, “If Americans have been slow to recognize the dangerous overreach of the N.S.A.’s phone surveillance, it is largely because they have scant information Read more

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Domestic Surveillance Under Secret Court Order is Exposed

The Guardian newspaper triggered immediate controversy when it reported on Wednesday, “The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.”

The report by the United Kingdom-based newspaper about surveillance activities carried out under the Patriot Act in the Obama administration quickly drew comment from top leaders in Washington.

Leading Senate Intelligence Committee members offered a context for the report, according to a New York Times article. They said the three-month order looked like it was a routine reauthorization under a more far-reaching program that lawmakers have been familiar with for quite a while.

“As far as I know, this is exact three-month renewal of what has been the case for the past seven years,” Sen. Dianne Feinstein said, adding that it was handled by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act. Therefore, it is lawful. It has been briefed to Congress.”

Sen. Richard Durbin of Illinois voiced alarm. “There’s been a concern about this issue for some time,” he said.  “That’s why I think sunsetting many of these laws is appropriate because circumstances change in terms of America’s security. And our information and knowledge change in terms of threats to America.” Durbin and Feinstein are Democrats.

The FISA court is a secret national security court. It issued the order to a Verizon subsidiary. The order involves “metadata,” collections of time and data logs that do not reflect either content or a subscriber’s name.

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Capture of Bin Laden Kin Renews Debate on Courts vs. Tribunals

The capture of Sulaiman Abu Ghaith, a son-in-law of Osama Bin Laden, has rekindled debate over prosecuting terror suspects in civilian courts versus military tribunals.

On Friday, Mr. Abu Gaith pleaded not guilty in a federal court in lower Manhattan to charges of plotting terror against Americans, the Associated Press reported. U.S. authorities said he was a spokesman for al-Qaida.

The Wall Street Journal reported that some Republicans think Mr. Abu Ghaith belongs before a military tribunal at Guanatamo. “Al Qaeda leaders captured on the battlefield should not be brought to the United States to stand trial,” said Rep. Mike Rogers, chairman of the House Intelligence Committee. “We should treat enemy combatants like the enemy.”

Sen. Kelly Ayotte, R-N.H., said that the terror suspect would become entitled to the rights of a U.S. citizen — including a speedy trial — by being in New York, Politico reported. 

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LA Times: 9/11 Suspects Deprived of 'Gold Standard' of Justice

Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed are facing charges before a military commission system that is improved, but that “simply doesn’t afford the defendants the gold standard of American justice,” a Los Angeles Times editorial said.

The editorial was entitled “Justice and the 9/11 defendants: A military tribunal is not the best way to demonstrate America’s commitment to the rule of law.”

The revised military commission system, improved over that established by the George W. Bush administration, remain less protective of defendants than does a civilian trial, the editorial said. In addition, the commission system falls under the aegis of the same military that locked up the defendants and held them for almost a decade.

“[B]oth substantively and symbolically, it is an unacceptable alternative to a civilian trial of the kind that has successfully convicted other terrorists,” the editorial added. It placed blame on both Congress for blocking earlier plans for a civilian trial and the Obama administration for important errors in handling the matter.

Earlier this month, the defendants were arraigned at a proceeding before the military commission at Guantanamo Bay, Cuba (see Gavel Grab).

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.

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Public Access to Secret 9/11 Testimony Sought

The American Civil Liberties Union has formally asked that the American public be allowed to hear testimony from five accused 9/11 codefendants about their experiences at the hands of CIA captors in secret prisons overseas. The defendants, including Khalid Shaikh Mohammed, are to be arraigned Saturday at Guantanamo Bay.

Under the system to be used by the tribunal, a 40-second delay is employed. That is time enough, according to a Miami Herald article, for an intelligence official to punch a white noise button if any of the defendants describe what CIA agents did to them between their capture in Pakistan and their arrival at Guantanamo, several years later. Spectators view the courtroom proceedings from a soundproofed, glassed-in booth.

The challenged practice amounts to censorship, the ACLU contended, saying it was premised on  “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”

The 9/11 case about to begin at Guantanamo will “test whether alleged terrorists can get justice before U.S. military tribunals,” a Bloomberg article said.

According to civil liberties advocates, civilian courts would provide greater legal protections — such as the exclusion of evidence tainted by torture — for the five men.

“A prosecution that ultimately fails to measure up to international standards of justice undermines our credibility in the eyes of the world and plays into the hands of those who want to attack us,” said David Glazier, a law professor at Loyola Law School in Los Angeles.

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In Terror Case, Debate Renewed Over Tribunals

Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed will be arraigned Saturday at the Guantanamo Bay Naval Base in what some have called the “prosecutions of the century.” The proceedings are renewing debate over the removal of the case to a military tribunal from a federal courtroom.

A Reuters article previewing the upcoming proceedings noted that “the tribunals have been criticized as a second-class system, rigged to convict, since they were first authorized in 2001.”

Charges lodged against five codefendants  were dropped in 2009 when the Obama administration planned to close the military detention facility in Cuba, eliminate the military commission process for trying terror suspects and prosecute the five in civilian courts in New York. Under a backlash of bipartisan opposition, however, that plan was withdrawn (see Gavel Grab). The charges were refiled last June.

A lengthy and ardent criticism of the upcoming military tribunal proceeding in Salon this week was written by Morris Davis, a retired U.S. Air Force colonel who was chief prosecutor for the military commission at Guantanamo Bay from 2005-2007.

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Commentary: The Lesson of a Terror Trial in Brooklyn

In Brooklyn, a trial is unfolding in federal court for a man accused of plotting to blow up New York City’s subway system in 2009. The trial hasn’t gotten much attention, one scholar said on NPR, considering it has been “an occasion for a convention of terrorism suspects.”

Andrew Rosenthal, editorial page editor for the New York Times, points to the trial for another reason in the newspaper’s Loyal Opposition blog.

He suggests it shows faulty thinking by those politicians who effectively blocked a trial in civilian court of Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11, 2001 terror attacks, and four co-defendants. Next month, the five will be tried before a military commission at Guantanamo. Rosenthal assails the politicians who opposed a New York City trial:

“There is no good reason to believe that the criminal justice system can handle an alleged terrorist who plotted to destroy the subway, but not an alleged terrorist who plotted to destroy the World Trade System. No good reason. The obvious bad reason is politics. Opposing the Mohammed trial was a publicity bonanza for tough-on-terrorism Republicans and a bipartisan group of cowardly members of the New York Congressional delegation.”

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Times Editorial Scores Path to Military Trial of 9/11 Defendants

A New York Times editorial decries the steps leading up to a planned trial of the accused 9/11 terrorists before a military tribunal as “The Road We Need Not Have Traveled.”

Last week, a senior Pentagon official authorized the trial for Khalid Shaikh Mohammed, the accused mastermind of the terror attacks, and four co-defendants. It likely will be held at Guantánamo Bay (see Gavel Grab).

The editorial labels the military tribunal as “constitutionally flawed” but devotes more attention to what it considers the mistakes of the George W. Bush and Obama administrations, as well as Congress passing a law “prohibiting the use of federal money to try any Guantánamo prisoner in federal court.” The editorial concludes with a references to a speech delivered last week by Brig. Gen. Mark Martins, the chief military prosecutor:

“We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster. But after all that has happened, even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.”

Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.


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