EFF Case Against AT&T To Go Forward

Tyler Too writes "The NSA wiretap lawsuit filed by the EFF will apparently be moving forward. A federal judge has denied the government's request that the EFF's lawsuit against AT&T be dismissed. Among other things, the judge ruled that 'if the government has been truthful in its disclosures, divulging information on AT&T's role in the scandal should not cause any harm to national security.' The case will now move forward, pending a government appeal."

I Like His Logic

[Winckle]

"if the government has been truthful in its disclosures, divulging information on AT&T's role in the scandal should not cause any harm to national security."

Sounds like the "terrorists" might've won.

But sounds good to me, but i'm a filthy liberal.

Re:I Like His Logic

[Tackhead]

> Sounds like the "terrorists" might've won.

<voice=texan>
An' they hate us for our freedom. So...
</voice>

> But sounds good to me, but i'm a filthy liberal.

<voice=texan>
Yeah, it's all your fault! Fer six years some folks have been complaining that the government isn't listening to the people... an' now that it does, y'all are haulin' us into court for it! What gives?
</voice>

Re:I Like His Logic

[Vicissidude]

No, in this case, the problem isn't the filthy lib'rals, but them thar activist judges!

Re:I Like His Logic

[Valdrax]

You know, I'm from the South, and I know that people actually do say "them thar," but I can't read that sentenence and not think it's meant to be read in a pirate's voice:

No, in this case, the problem isn't the filthy lib'rals, but them thar activist judges! ARRRR!

Re:I Like His Logic

[TubeSteak]

/me smacks the ignorant hillbilly upside the head.
You sound like one of them Cee-En-En types.
Don' chew know that all them thar activist judges is filthy lib'rals?

Re:I Like His Logic

[Doctor Memory]

the judge ruled that 'if the government has been truthful in its disclosures, divulging information on AT&T's role in the scandal should not cause any harm to national security.'

Hmmmm, remarkably similar to "If you're innocent, you have nothing to worry about". And where have we heard that before?

Re:I Like His Logic

[mrchaotica]

The difference is who it's being applied to. Private citizens have a right to privacy (that's why they're called "private!"); the government does not.

Re:I Like His Logic

[WhatAmIDoingHere]

My right to live my life without being molested on a constant basis by the government outweighs your right to not get blown up.

Re:I Like His Logic

[WhatAmIDoingHere]

I'm against abortion. I am for murdering children.

Re:I Like His Logic

[blincoln]

am not saying this to be mean or short-sighted but every time I see a very liberal person taklign about the wiretapping/phone records issue, they genuinely come across to me as someone who would rather see people DIE as in DEAD than have one single person's phone call monitored that shouldn't have been. Does it matter that they were talking about a recipe for fried chicken or a rendezvous at a restaurant? No.

That's funny. Every time I hear a very stereotypically "conservative" American talking about the wiretapping/phone records issue, they genuinely come across to me as someone who would rather see Americans live under constant surveillance with no actual freedom than have one single person stand a chance of being killed (or even injured) by some nebulous "terrorist" bogeyman-of-the-week.

The thing is, I can't figure out if it's blind stupidity alone, or stupidity mixed with blind hatred of the Bush administration, and by extension, the military and intelligence communities.

The thing is, I can't figure out if it's blind stupidity alone, or stupidity mixed with a blind hatred of anything they perceive as "liberal."

The issue here is not the NSA listening in on one particular person giving a recipe to a friend. It is the mentality that a surveillance society is a good thing. The NSA wiretaps are a product of that mentality, with the logical conclusion of it being totalitarianism. That is why people like me want to see programs like this smashed *now*, before they get even more out of hand.

Re:I Like His Logic

[truthsearch]

But what if it's a recipe from "How to Serve Man"? You support baby-eaters? Won't anyone think of the children?

Re:I Like His Logic

[rajafarian]

... who would rather see Americans live under constant surveillance with no actual freedom than have one single person stand a chance of being killed...

Sheet. Didn't thousands if not millions of Americans more or less willfully die for the right of Americans to live freely and not under surveillance? Hell, I'd die if I knew that would be what I were doing.

Re:I Like His Logic

[mrchaotica]

Hell, I'd die if I knew that would be what I were doing.

Yeah, but I wouldn't if I knew we were going to just go and screw it up like we're doing now!

Re:I Like His Logic

[Dare nMc]

> genuinely come across to me as someone who would rather see people DIE as in DEAD than have one single person's phone call monitored that shouldn't have been.

I don't care about my phone (currently anyway) and gov't intrusion. I don't like it when they use the records they have to silence reporters and any other opposition they have. Also to have something of so much value held so secret.

IE if you have traceability of what/when/how something of so much value is accessed, thats one thing. When it is

Re:I Like His Logic

[Beryllium Sphere(tm)]

You say
>they genuinely come across to me as someone who would rather see people DIE as in DEAD than have one single person's phone call monitored that shouldn't have been.
Patrick Henry said
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!"

Re:I Like His Logic

[geminidomino]

I think as opposed to "DEAD" as in "jiggly beach vollyball"

Either the EFF is fast or /. is slow

[Skyshadow]

I just got the EFF's "we're winning, now please donate more cash" spam and surfed over here to see if there were details. Scary how the two lined up so perfectly.

So yeah, if you have a few bucks, they could probably use it. I realize it's only our basic liberties, but let's be honest -- if you don't donate your spare cash to the EFF, you're just going to waste it on booze.

I can't afford to give this year...

[FatSean]

...But I do wear my EFF T-shirt as often as possible when I go out in public. Which does actually happen!

Maybe next year.

Re:Either the EFF is fast or /. is slow

[RWarrior(fobw)]

if you don't donate your spare cash to the EFF, you're just going to waste it on booze.

too bad we can't waste it on girls.

Re:Either the EFF is fast or /. is slow

[flooey]

So if there's a dupe, do you donate to the EFF twice?

And drink!

Hmm...

[Poromenos1]

"if the government has been truthful in its disclosures, divulging information on AT&T's role in the scandal should not cause any harm to national security."

Is that like "if you have nothing to hide, you won't object to surveillance"? Seriously, poor government!

Re:Hmm...

[Soko]

Is that like "if you have nothing to hide, you won't object to surveillance"? Seriously, poor government!

No, it's not like that. It's more like this:

"If you have been truthful to previous investigaters about your involvement in this, you won't mind us investigating your pal over here for any wrong-doing on his part."

The US Govt. tried to have the case against AT&T thrown out - not a case against itself. It's quite a diffrent matter.

Soko

More like...

[jd]

"If you've not commited any crimes with your friend, you won't have anything to worry about if I ask your friend if he's commited any crimes with you", which does reduce to the grandparent post's phrasing. Basically, the judge is daring the Government to either let the case through (and risk disclosure) -or- be found guilty of lying.

Since the Government isn't a defendent, and as the US has no meaningful concept of "contempt of court" or perjury, the court can't do anything about it if the Government is found guilty of lying. On the other hand, this is election year, which is not a good year to be found guilty of anything, even if there is nothing the courts can do.

My guess is that the Government will do anything and everything to stall proceedings, such that if there is a trial, there's absolutely no risk of anything embarassing being said before polling day. If they're in power, they can clean things up afterwards. If they're not, it's no longer their problem.

Re:More like...

[AuMatar]

Of course, the republicans have set a nice precedent of impeachment proceedings for perjury by the executive branch...

Re:More like...

[killjoe]

In order for impeachment to happen you need a congress which cares more about the constitution and America then they do about their party and the next election. Either that or you need a congress that is run by the opposing party.

We have neither in this case so there will not be any impeachment even though a stronger case can be made for Bush then Clinton.

Re:More like...

[StikyPad]

Because the republicans are likely to impeach Bush? And before you talk about the dems pulling a majority congress out of their collective derriers in '06, you should be aware that it takes a supermajority [wikipedia.org] to convict.

You also seem to forget that Clinton was aquitted.

Re:More like...

[AuMatar]

Lets see how the elections go. I think the dems are going to take the majority. A supermajority will be harder, but you never know.

Re:More like...

[DanTheLewis]

It wasn't perjury, remember. It was thoroughly vetted lawyer talk, and it was slimy, but Clinton never broke that law.

Re:Hmm...

[theCat]

That would imply that judges have a sense of humor. And perhaps that they are not above cruel irony. Which, if true, speaks highly of the judiciary, in my opinion.

Re:Hmm...

[Knara]

Most people haven't read a lot of judicial decisions, but it's no uncommon for them to have clever (if obfuscated) wording showing wit and distain for stupid plaintifs/defendants.

Re:Hmm...

[GigsVT]

Is that like "if you have nothing to hide, you won't object to surveillance"? Seriously, poor government!

Absolutely.

The government is supposed to be "surveilled" by the public. It is our responsibility to watch the government as closely as we can. It's not hypocritical to object to cameras on street corners but to lobby for cameras in police cars. They work for us, not the other way around.

How Far Into the Rabbit Hole Are We?

[kravlor]

I certainly look forward to seeing just how much the phone companies have been aiding the NSA. With the abuses leaked regarding the "terrorist surveillence program" related to international phone calls, the warrantless surveilance of American citizens certainly needs to be dragged, kicking and screaming, into the light of day.

Re:How Far Into the Rabbit Hole Are We?

[camt]

and then execute those responsible for the program for treason.

I do not think treason [webster.com] means what you think it means.

Re:How Far Into the Rabbit Hole Are We?

[shawb]

Definition 1)The betrayal of a trust.

Also, I believe purposely deconstruction the public scrutiny of your actions as well as checks and balances of the three arms of government could be construed as an attempt to overthrow an open government, the definition you gave did not explicity require a violent overthrow, but did give it as an EXAMPLE of treason.

Re:How Far Into the Rabbit Hole Are We?

[Amazing Quantum Man]

However, in the US, treason is legally defined in the Constitution [usconstitution.net].

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Re:How Far Into the Rabbit Hole Are We?

[TheRaven64]

levying War against them,

Would orchestrating a war in which American citizens lost their lives against an enemy who was not a threat to the US count?

or in adhering to their Enemies, giving them Aid and Comfort.

Would arranging for members of the Bin Laden family to be flown out of the country during the no-fly period following the September 11 attacks count here?

Re:How Far Into the Rabbit Hole Are We?

[vought]

Let me take your troll at face value for a moment... You want to execute those responsible for initiating a program intended to protect American citizens.

I guess you believe everything the government tells you, hunh? I think it's quite remarkable you can divine intent from a statement made by people who also intended for everything to go well in Iraq, despite lack of a plan.

I am no conspiracy theorist, but given what the Nixon alumni in this administration have already proven that they are capable of, I thi

Re:How Far Into the Rabbit Hole Are We?

[shawb]

I don't think that's a fair comparison... I've actually seen fish caught on a bamboo pole.

Re:How Far Into the Rabbit Hole Are We?

[drinkypoo]

You want to execute those responsible for initiating a program intended to protect American citizens. And you call it "treason," how ironic

The road to hell is paved with good intentions.

By this definition, it is those giving the enemies of the U.S. "aid and comfort" that begin to meet that standard.

The enemies of the constitution are enemies of the U.S. The constitution protects us from unlawful search and seizure. QED.

Re:How Far Into the Rabbit Hole Are We?

[drinkypoo]

"The constitution protects us from unlawful search and seizure."

No, the Bill of Rights protects us from unlawful search and seizure.

Engage in pedantry much? Let's run this down; the bill of rights is a set of amendments to the constitution. As amendments, they are incapable of functioning on their own. Thus, they are part of the constitution (look up amend [reference.com] in the dictionary if you still don't get it) and well, this whole conversation was pointless and stupid. Especially on your side.

Re:How Far Into the Rabbit Hole Are We?

[mathwhiz99atucb]

Yes, the Fourth Amendment is part of the Bill of Rights, so are the rest of the first ten amendments to the Constitution (as was the 27th Amendment, see http://en.wikipedia.org/wiki/Twenty-seventh_Amendm ent_to_the_United_States_Constitution [wikipedia.org]). But by Article V of the Constitution:

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for p

Re:How Far Into the Rabbit Hole Are We?

[AuMatar]

Intended to protect American citizens? Bullshit. Its intended to increase the powers of the government, its precisely *against* the founding principles of the US.

Given that the wiretaps were specifically aimed at people who made calls to or received calls from known terrorist phone numbers

No, they weren't. If thats all they were aimed at, the government would get a *warrant* against them. You know, like they've done hundreds of times in the past. The government was data mining the phone records of the *entire nation* not of specific people.

On a side rant- known terrorists? Its been proven in a court of law? Or they confessed to it? No? Then they aren't known terrorist, they're *suspected* terrorists, and are innocent until proven guilty.

Shame on them for this.

Shame on them? No, shame on you. Shame on you for throwing away our freedoms, shame on you for pissing all over the Constitution. And shame on the rest of America for letting sheep like you throw away what generations have fought and died for.

Re:How Far Into the Rabbit Hole Are We?

[Anthony Boyd]

Shame on them? No, shame on you. Shame on you for throwing away our freedoms, shame on you for pissing all over the Constitution. And shame on the rest of America for letting sheep like you throw away what generations have fought and died for.

My God. Your post makes me want to weep. Partly because I'm just so thrilled to see someone stand up for the Constitution is such stark terms. But partly because it's completely sad to think that a post like yours is rare enough to evoke such a reaction. :(

Re:How Far Into the Rabbit Hole Are We?

[gordo3000]

you're off. the nsa taps were not aimed at known terrorist phone numbers. They were aimed at phones that made frequent calls to countries with known terrorist ties(namely, anywhere in the middle east). The data as to who was being called and where the calls were coming from was being used in order to narrow down possible terrorists. If they were known terrorist phone numbers, the wiretaps could begin immediately and concurrently, the administration could request clearance through FISA and the special co

Re:How Far Into the Rabbit Hole Are We?

[shawb]

So to say the warrantless wiretaps were required for security is only meaningful if the government was partaking in broad based surveilance of anyone who made any contact with person's from the middle east.

And how do we know that wasn't what the NSA was doing? We may yet find out that is what happened, as the judge let the case go through. Remember government officials: if you have nothing to hide, then you won't mind the public oversight.

Re:How Far Into the Rabbit Hole Are We?

[Tweekster]

Protect americans hardly.

They are going directly against the protection of people from their government.

THey are going directly against the spirit and literal writing of the constitution to gain more power.

That is treasonous of the American PEOPLE (you know, those unimportant people that give the government their power)

Re:How Far Into the Rabbit Hole Are We?

[EllisDees]

>Let me take your troll at face value for a moment... You want to execute those responsible for initiating a program intended to protect American citizens.

Prove it. All you have are the assurances of the executive branch, a group of known liars, that any of this is about protecting American citizens.

>By this definition, it is those giving the enemies of the U.S. "aid and comfort" that begin to meet that standard.Given that the wiretaps were specifically aimed at people who made calls to or received ca

Re:How Far Into the Rabbit Hole Are We?

[Tx]

Unless you consider the actaul act of surveillence an abuse, there have been no "abuses".

Most epople consider improperly authorized surveillance an abuse, I think you'll find.

No one has been blackmailed or otherwise had any information misused.

I think you meant to say "No one has been blackmailed or otherwise had any information misused as far as I know." Big difference, and they might well not be in a position to be shouting about it.

Re:How Far Into the Rabbit Hole Are We?

[Penguinshit]

Certain portions of the mis-named Patriot Act make it illegal to shout about it.

Re:How Far Into the Rabbit Hole Are We?

[mrchaotica]

mis-named Patriot Act

It's not mis-named; the Ministry of Truth named it that on purpose!

Re:How Far Into the Rabbit Hole Are We?

[flooey]

No one has been blackmailed or otherwise had any information misused.

Yeah, I mean it's not like they've been using it to discover reporter's confidential sources [abcnews.com] or anything.

A First in History

[ToAllPointsWest]

AFAIK, the government has always gotten "national security" cases such as this thrown out of court, this change represents a very good historical first! The Right of Petition is still alive in the US!!!!

Re:A First in History

[plasmacutter]

nope.. what about the time magaizne case?

still.. in this age, which has been described as "worse than watergate", it is a small.. thin ray of hope that we might yet claw our way back from the brink of totalitarianism.

Re:A First in History

[erroneus]

Yes, the judiciary at large is getting pretty annoyed at the way the other two [executive and legislative] are behaving. It is time that our checks and balances started to work for us. It is no mystery that Bush's supreme court nominees were pushed so hard and that their confirmation was so wildly fought. In the end, Bush's congressional and senate majorities confirmed them. But even now I get the feeling that some of Bush's judges will start to think for themselves.

sad

[Anonymous Coward]

Is it so sad or what that it is in fact the two elected branches of government that are running the country into the ground while the other one with its appointments and life terms is the only thing standing in their way? I'm beginning to think people are really that stupid.

Re:sad

[shawb]

Oh sweet mod points, where are you now?

Re:sad

[BalanceOfJudgement]

Holy crap that's a scary thought..

Quite a Surprise

[BigCheese]

I expected the yes men to have buried this long ago.

Is the US justice system working? We'll have to wait and see...

Re:Quite a Surprise

[Valdrax]

Is the US justice system working? We'll have to wait and see...

I had actually fallen into a sort of pessimistic mindset about the future of the Constitution and democracy in America, but the recent Supreme Court decision in Hamdan vs. Rumsfield has given me great relief that our system of checks and balances is still capable of fighting back, even if weakened.

Now that the case is proceding, I have high hopes that this nation is on the road to recovery from the post-9/11 madness.

Re:Quite a Surprise

[BalanceOfJudgement]

Same here. When I navigated to Slashdot and saw this headline on the page, I jumped out of my seat and yelled "YES!!!" as though someone had just given me a million dollars. Frankly, I fully expected the judge to throw out the case and I have been sitting here for weeks thinking to myself that this country is completely screwed and wondering what I could do about it.

This is such great news and it gives me a sliver of hope that maybe, just maybe we aren't on the road to complete totalitarianism that I thoug

The balance begins to reassert itself.

[N. Vander Ende]

It's nice to see the intended balance of power in our government begin to stabilize once more. When one or more sides start to get out of hand, the other side steps in! Sort of like rock-paper-scissors, but C-SPAN covers the matches. I eagerly await the incensed cries of "activist judges!"

Re:The balance begins to reassert itself.

[ScrewMaster]

I eagerly await the incensed cries of "activist judges!

Yeah, no kidding. Seriously though, an activist judge is usually one that wants to set new precedent according to his own convictions, whereas this judge is attempting to uphold existing law ... you know, the Constitution. It sure would be nice to get back to a state of affairs where the government is transparent and scared shitless of us.

I'm dreaming, I know.

no subject

[UnixSphere]

As a consumer, I'm ready to look at these list of companies and effectively not do any business with them anymore. I certainly hope I can convince others close to me to do the same. Your dollar is stronger than your bitching to these companies, stick it to them.

Judicial branch doing it's job

[shuz]

It is nice to see the Judicial branch keep the Executive branch in check. What's even nicer is that the lower court will have the power to see if the Executive branch has been telling the truth without going to the supreme court. As a US citizen I am comforted by this news.

Re:Judicial branch doing it's job

[loraksus]

Don't worry, presidential pardons are around the corner...

Re:Judicial branch doing it's job

[Reverend528]

Don't worry, presidential pardons are around the corner...

Not if the EFF is smart and goes for the death penalty.

Re:Judicial branch doing it's job

[Zathrus]

Don't worry, presidential pardons are around the corner...

Yes, but the president cannot pardon himself.

Of course, it's unclear that he's broken any law; even if it's found to be unconstitutional and circumvents FISA, then it's unclear that anything could be done about it. By the time it's resolved it will be well past 2008, and there's no method for impeaching a President who is no longer in office (and there's not much else that you could do).

Violating the public trust is not illegal, as countless politici

Re:Judicial branch doing it's job

[BalanceOfJudgement]

Nah - it would cost the president quite alot of political capital to use the pardon for something like this.

So yes, he may use it - at the price of the Republican party ever having a majority for the next 10 years.

Your sig

[Reality Master 201]

For the word you intend, the proper spelling is "principle."
FWIW, I'm an awful speller, too.

YES!

[TheDarkener]

A win for those who dislike governments breaking their own laws!

*does a little dance*

*realises that we still have a LONG way to go*

*frowns*

Your sig

[WindBourne]

NSA: The most organized, well funded group of terrorists in the world.

I wish that ppl would think about this before posting such things. First the NSA does not involve itself with manipulating others. All they do is monitor, as well as work on securing our (USA) communications and systems. In fact, up till recent times, the monitoring was limited to who and to where the data went. But the NSA was professional enough to not send it elsewhere (or perhaps greedy).

Now, the real issue here is the PATRIOT act w

Re:Your sig

[BalanceOfJudgement]

I wish that ppl would think about this before posting such things. First the NSA does not involve itself with manipulating others. All they do is monitor, as well as work on securing our (USA) communications and systems.

Terrorism is literally the act of carrying out actions that cause people to fear for their safety or well being.

From my own perspective, I would consider the Chilling Effect [wikipedia.org] to be a form of terrorism. I sometimes wonder if people will be 'disappeared' for being a little too outspoken abou

I'm stupid

[Anonymous Coward]

I guess I'm stupid.

I don't understand how invading a country protects my freedom. Or how, terrorists threaten my freedom. They can blow shit up all they want, but I still have freedom of speech and religion. Or how by violating our civil rights, our Government protects our freedom. How is this true??

The only threat to my freedom has been my own Government. They are the ones (and unfortunately, the majority is letting them) who are trying to restrict the freedom of the press with their lawsuits over leaks. They are the ones who are violating citizens rights by spying on them.

This case is protecting our rights and fredoms that, let's see, were violated by our Government.

I'd rather live free and live with the vry remote possiblity of dying in a terrorist attach than having my Government take my rights away to protect my Freedom!

I've been voting and writing letters, but, unfortunately, the cowards run the show.

Re:I'm stupid

[drinkypoo]

I'm stupid (Score:-1)
by Anonymous Coward on 07-20-06 14:59 (#15752993)

[...]

I've been voting and writing letters, but, unfortunately, the cowards run the show.

Irony, thy name is slashdot.

Re:I'm stupid

[mirio]

AC, you are right on the mark.

When people talk about freedom (real freedom, not the politician's word), what are they talking about? FREEDOM FROM GOVERNMENT.

Governments are to be feared. The natural tendency of any government to expand it's power over it's people must be continuously fought.

Re:I'm stupid

[smellsofbikes]

They are decreasing our freedom TO do things, which they falsely imply increases our freedom FROM other things. By keeping people scared, they get votes.

I too have been writing letters. Keep them up. People like us have managed to stop bad government before: maybe we'll win this time, too.

Re:I'm stupid

[Lord Ender]

I don't understand how ... terrorists threaten my freedom. They can blow shit up all they want, but I still have freedom of speech and religion.

Terrorists threaten your inalienable rights to life, liberty, and the pursuit of happiness. Or at least the "life" part. That's the reasoning. They also threaten your freedom of speech with that "don't draw Allah or we'll riot!" stuff.

You may not think giving up one right (privacy) to decrease your chances of losing another right (life) is a fair trade. But some peo

Ask Salmon Rushdie

[Ungrounded Lightning]

I guess I'm stupid. I don't understand ...how terrorists threaten my freedom.

Ask Salmon Rushdie.

I'd suggest you ask Theo van Gogh. But you'd need a Ouiga board to get his answer.

Re:I'm stupid

[Saeger]

I'd rather live free and live with the vry remote possiblity of dying in a terrorist attach than having my Government take my rights away to protect my Freedom!

Haven't you been watching 24? You need to get a proper dose of conditioning.

Government heros like Jack Bauer NEED total information awareness, and they need the authority to shoot then decapitate your uncle in order to save us all from a nuke. A NUKE!!! Ahhhgg! You're panicked too, right?!

The exception is the rule. 24/7. :)

One step closer

[imemyself]

Hell yeah! At the very least this shows that the Bush administration can't arbitrarily say "national security" to cover up things that they've done that may not be entirely legal. With this, and the stuff about San Francisco and AT&T, its nice to know that AT&T might actually get in some trouble/lose some money because of what they've done. Maybe they should change their advertising slogan to Your World, Delivered...To The NSA.

Misleading Ars Article Title

[Mad Martigan]

The Ars article's title was: Federal judge doesn't buy state secrets argument in NSA wiretap case, which I think is a little misleading. Read this passage from State Your Secrets [fas.org] (an article by Louis Fisher appearing in the June, 2006 edition of Legal Times, reprinted courtesy of Steven Aftergood of the Federation of American Scientists [fas.org])

The responsibility for deciding questions of privilege and access to evidence is central to the role of a judge in conducting a trial.

This authority is well established. In his well-known 1940 treatise on evidence, John Wigmore recognized the existence of "state secrets" but also concluded that the scope of the privilege had to be decided by a judge, not executive officials. He agreed that there "must be a privilege for secrets of State, i.e. matters whose disclosure would endager [sic] the Nation's governmental requirements or its relations of friendship and profit with other nations." Yet he cautioned that this privilege "has been so often improperly invoked and so loosely misapplied that a strict definition of its legitimate limits must be made."

Wigmore considered the claim of "state secrets" so abstract and useless that he divided it into eight categories, including exemptions from giving testimony, attending court, providing evidence by deposition, and disclosing communications by informers to government prosecutors. But on the duty to give evidence, he was unambiguous: "Let it be understood, then, that there is no exemption, for officials as such, or for the Executive as such, from the universal testimonial duty to give evidence in judicial investigations." An exemption from attendance in court "does not involve any concession either of an exemption from the Executive's general testimonial duty to furnish evidence or of a judicial inability to enforce the performance of that duty."

Wigmore came down clearly on which branch should determine the necessity for secrecy. It was the judiciary: "Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coördinate body of government share the confidence? The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege . . . Both principle and policy demand that the determination of the privilege shall be for the Court."

Basically, he's saying that, yes, there are state secrets, but the judiciary -- not the executive -- is responsible for determining how trials involving state secrets proceed. This idea of someone crying 'State Secrets!!!1!!1!one!11!!!' and automatically getting a case tossed out is relatively new, and, as most of us here believe, contrary to the basic premise of the court system.

Now we get to really see

[obeythefist]

The american illusion of democracy boil away when this case is mysteriously, or not so mysteriously boiled away.

The way we protect liberty will have to change

[CurtMonash]

A lot of people seem to be overlooking two basic facts:

1. The amount of information government truly needs to gather to protect us is also sufficient to greatly threaten our liberty.
2. Governments will inevitably gather much more information than they really need.

As a result, it is necessary to design legal systems (and where possible to restrain the design of technical systems) so that even though government has the information, it doesn't commonly use it in nefarious ways. I've written a series of articles about that. Most of them can be found starting from the link http://www.monashreport.com/2006/06/06/freedom-eve n-without-data-privacy/ [monashreport.com], or more generally from http://www.monashreport.com/category/public-policy -and-privacy/privacy/ [monashreport.com]

Examples of why we should expect government to gather huge amounts of information include, in no particular order:

A. All the call/e-mail/whatever connection information they're already getting, as documented in the news around NSA surveillance, AT&T's involvement, and so on.
B. Laws to require ISPs or information service providers to keep records of which IP addresses connect to which sites (so as to fight child porn, piracy, whatever).
C. Britain's moves towards complete video tracking of car movements (I get my reporting on this from The Register).
D. Credit card transaction records.
E. Forthcoming integrated electronic health records. (Those will have huge benefits to the saving of lives, quality of life, cost and efficiency of health care, etc. Whatever the privacy risks, they need to be managed so that health care is allowed to improve.)

And that's even without mentioning RFID.

What's slowing all this down is some political opposition, plus the huge technical difficulty of the required system integration projects. But in a small number of decades, it will all have happened. Our laws and oversight systems need to have evolved drastically by then. We have to start now.

I'm definitely not saying that we should cripple government in gathering and using information. Indeed, I'm an advisor to Cogito, a company with some of the most powerful relationship analysis software out there. http://www.dbms2.com/category/object-oriented-and- xml-technology/cogito/ [dbms2.com] But I think we need to radically upgrade our legal structures in response to these technological trends.

CAUTION: misleading quote!

[Rev Snow]

The summary is misleading because it
quotes the article in such a way as to
appear to be quoting the judge's opinion.

The word "scandal" does not appear in
the judge's opinion.

The article itself is clear on the quoting,
but Slashdot editors should know how few
people RTFA, and avoid giving them the
wrong impression.

Re:Btw...

[fohat]

IANAL and didn't RTFA, but AFAICT the EFF stands for the Electronic Frontier Foundation.

Re:no career ambitions

[bersl2]

Federal judges sit until resignation, death, or impeachment and conviction by the Senate, for this very reason.

Re:no career ambitions

[Zathrus]

True, however if you were to assume that the current political power balance was to continue then the judge could kiss any hopes of moving to the Supreme Court goodbye.

And since he was appointed by Reagan in 1985 to Federal District court, and George H.W. Bush to the 2nd Circuit Court of Appeals in the 1989, I'm going to guess that he's not a left-leaning judge (I couldn't determine for certain). He's currently Chief Justice for that court, and so the only place up at this point is the SCOTUS (or maybe a sp

VAUGHN not JOHN Walker

[wsanders]

This is ND California, not court of appeals.

Maybe a carerr limiting move - depends on who gets elected in 2008!

There is already a faction in Congress trying to move the 9th District C of A (known to be a bunch of crazy motherf**er liberal hippies) to Boise or some other godforsaken place. Don't give them any ideas.

Re:VAUGHN not JOHN Walker

[Zathrus]

This is ND California, not court of appeals.

Aw crap... in researching the judge I did a more general search and pulled up the wrong judge.

Oddly, the real Judge Vaughn Walker was also appointed by Reagan and then appointed Chief Justice by George H. W. Bush. But, as you state, to the N.D. of California, not to the 2nd Circuit Court of Appeals (which is in an entirely different part of the country).

So this probably was a "career limiting" move if the neo-cons retain control of the Republican party. They certainly won't reward him with a Appelatte court position and the Democrats are unlikely to appoint a conservative judge to the 9th.

Which makes it an even better story really... since it means that he's likely ruling with the law rather than with politics. And, better yet, it means the appeal has to go to the 9th Appellate court, which is unlikely to overturn his decision.

Someone go mod down my earlier post. Thanks.

Re:no career ambitions

[Dun Malg]

True, however if you were to assume that the current political power balance was to continue then the judge could kiss any hopes of moving to the Supreme Court goodbye.

There are over 800 federal judges. SCOTUS has a vacancy maybe once every 5-10 years. The vast majority of federal judges have absolutely no expectation whatsoever of nomination to the supreme court.

Re:no career ambitions

[bigtrike]

Federal judges sit until resignation, death, or impeachment and conviction by the Senate, for this very reason.

This administration has already proven that it will do anything to individuals who get in its way.

Re:no career ambitions

[Fear the Clam]

Not all federal judges. Bankruptcy judges sit 14-year terms. They can renew if they want, but they still have to fill out some forms.

My guess would be...

[jd]

...that said log cabin is in a neutral country and is sufficiently concealed by trees as to not appear on Microsoft's or Google's satellite photos.

Re:no career ambitions

[Maelwryth]

If you were pulling the strings, which would you want more?

A) The judge to quash the well publicised case, possibly causing an uproar.

B) The judge to allow the case. Drag the case out over a year or two. Make the EFF spend a shitload of money, and then have the defendant win.

Besides, the NSA are still sitting pretty. It's AT&T that's being sued, not them.

Re:no career ambitions

[BalanceOfJudgement]

Besides, the NSA are still sitting pretty. It's AT&T that's being sued, not them.

Hehe. That is, unless AT&T is found guilty of wrongdoing.

That would open up a very interesting can of worms.

Re:Some degree of balance

[inviolet]

Unfortunately, we will never know whether (and how often) the NSA's programs did indeed prevent attacks like 09/11.

It puts is civilians in the impossible position of having to judge the need for, and effectiveness of, secret programs aimed at secretive enemies.

And the hell of it is, the president himself has to lie to us. Imagine that you are the prez, and you receive some touchy classified information that says somebody is getting ready to body-slam us. You've got to convince America that we've got t

Re:Some degree of balance

[Clod9]

You use your political capital and public relations tools to convince the public to go along with your policy, yes. And then, after the chips have fallen, if the public sees that you lied and cheated solely to advance your personal ambitions and had no care at all for the nation and its soldiers, you get dragged off to prison. This is precisely what Bush did with his WMD's in Iraq, except he hasn't been hauled off yet. He's hauling off his opponents instead.

When the Prez says "trust us", and abuses that tr

Re:Some degree of balance

[vertinox]

Funny... If you replaced your words with another famous "uhampered" security group we all know of we get something like this:

Personally I think we should let the Gestopo do its job. When Gestopo data starts being used to find Christian Democrats and Socialists we've got a problem, but as long as its used for national defense and national defense only I personally think its a good idea to let them do there job unhampered. Imagine if the Reichstag fire had been prevented by such a program? When I say national defense I mean attacks like Reichstag fire, Soviet invasions, etc. things killing hundreds or thousands of people.

Ironically, unhampered security groups do lead to invasions and killing of hundred of thousands of people. Personally I don't think that the NSA is even remotly comparable to the Gestopo, but what if in 20 years a power hungry psycho uses the massive amount of power we let the NSA have today to declare a defacto dictatorship?

If we make the Presidency so powerful and unhampered as well as its agencies then corrupt evil people desiring power will seek this position. We must keep the Presidents and security groups in check so that this never happens.

Re:Some degree of balance

[tourvil]

...but what if in 20 years a power hungry psycho uses the massive amount of power we let the NSA have today to declare a defacto dictatorship?

If we make the Presidency so powerful and unhampered as well as its agencies then corrupt evil people desiring power will seek this position. We must keep the Presidents and security groups in check so that this never happens.

This is the most important argument that anyone can make on this issue, IMO, and I'm glad to see you got modded up. People on both sides

Re:Some degree of balance

[DragonTHC]

I was perusing the cable channels last night and came across a senate hearing on C-SPAN2

Kim Taipale, executive director of the Center for Advanced Studies, was giving testimony to the US Senate about the NSA and the Global Communications network

He said, and I'm paraphrasing, that it was no longer feasible for the NSA to ensure that they didn't listen to the communications of american citizens without some sort of in-depth investigation to determine if the people they were listening to were in fact american