back to article US government upends critical spying case with new denial

A closely watched case covering the constitutionality of a spying program has been thrown into disarray after a US government lawyer claimed an assertion at the heart of the lawsuit simply never occurred. Speaking in oral argument [mp3] at the Second Circuit Court of Appeals this week, the government representative told judges …

  1. gloucester

    Pond logic Logic pond

    So US gov says we've got a big database but it's ok coz we were looking for foreigners, and we've got it now so we can search what we want. (Unless they lose this case possibly.)

    Was the latest UK line not that, well yes obviously we have this big database, but it doesn't really count unless we bother to search it?

    Glad IANAL.

    1. BebopWeBop

      Re: Pond logic Logic pond

      so we can search what we want. (Unless they lose this case possibly.)

      so we can search what we want. (Unless they lose this case possibly or simply don't tell anyone.)

  2. Anonymous Coward
    Anonymous Coward

    'a mystery wrapped in a riddle inside an enigma'

    My head hurts! Reading that article reminds me of this JFK (1991) scene:

    .......

    Jim Garrison: Who killed the President?

    David Ferrie: Oh, man, why don't you fucking stop it? Shit! This is too fucking big for you, you know that? Who did the President? Who killed Kennedy? Fuck, man! It's a mystery! It's a mystery wrapped in a riddle inside an enigma! The shooters don't even know! Don't you get it?! Fuck, man! I can't keep talking like this! They're gonna fucking kill me!

  3. Anonymous Coward
    Unhappy

    As usual, the intel community lies to the people in order to protect itself.

    They set up their database so that they can go on fishing expeditions, and they don't want to give that up, so they will fabricate any lie they need to in protecting their right to surveil whoever the hell they want to.

    Disgusting. And the sigint agencies overseas are not any better. Worse yet, they have become addicted to the largesse of the NSA. Remember all those insights from the Snowden documents about how many millions of $ GCHQ was getting in return for services rendered to the NSA?

    1. Emperor Zarg

      Re: As usual, the intel community lies to the people in order to protect itself.

      They set up their database so that they can go on fishing expeditions, and they don't want to give that up, so they will fabricate any lie they need to in protecting their right to surveil whoever the hell they want to.

      (emphasis mine)

      Their ability to surveil, not their right. They don't have this right and they know it.

      1. strum

        Re: As usual, the intel community lies to the people in order to protect itself.

        >Their ability to surveil, not their right.

        Indeed. Governments don't have rights; they have powers (and, maybe, duties).

        1. Mark 85

          Re: As usual, the intel community lies to the people in order to protect itself.

          Indeed. Governments don't have rights; they have powers

          And as we know, power corrupts. Absolute power corrupts absolutely. With no checks and balances, there is absolute power involved here.

  4. a_yank_lurker

    Cell with a view, pretty please

    Can I have the cell in the corner with the nice view for the concertina wire? Or is it 'papieren, bitte'?

  5. Michael H.F. Wilkinson Silver badge

    Fair trial?

    "So Daoud was convicted on the basis of evidence that neither he nor his lawyers have been allowed to see."

    How can a defence lawyer EVER defend his client without access to ALL of the evidence? Just asking.

    1. Geekpride

      Re: Fair trial?

      They can't. But in both the US and the UK, it's been deemed acceptable. The US has this Kafka style ability for there to be no fixed facts to argue against, while the UK has the Orwell-esque Ministry of Justice.

  6. tom dial Silver badge

    Judge Gleeson's decision, linked in the article, concludes that the section 702 surveillance that captured Hasbajrami's email was lawful and consistent with the fourth amendment, and the evidence obtained from it did not need to be suppressed. He also concluded that the FISA warrants issued under other provisions of the Foreign Intelligence Surveillance Act were lawful.

    The decision states fairly clearly that the government disclosed to Hasbaijrami in February 2014 that section 702 collection led to the warrants. It is not at all clear why the his attorneys would be surprised at the government's mention of that in mid-2018. It also contains a fairly lucid discussion of the relevant parts of the law at issue, 50 USC Chapter 36, along with a number of references to earlier decisions that suggest it is unlikely to be found unconstitutional.

    It is of some concern that the law generally requires the judge, acting alone, to review the warrant applications and make a determination of their compliance with the law, but that is something the Congress may change if they consider it necessary or desirable.

  7. Ayanami

    Spying on everybody but your own is Okay ?

    After reading this article I noticed the lack of controls and procedures to limit information and data collected on everybody they can. Legal experts in the US is busy fighting collection of data of their own people, but what about other people's right to privacy ?

    If governments gather data on "foreign persons abroad" in any manner regardless if the data actually flowed into the country would mean they can collect data on anybody without consent. I use "if the data actually flowed into the country" because the article deals with a identified system that collects data. The government clearly attempts to hide aspects of the system, thus one can assume other systems also exist to collect more data.

    There are many aspects of governments "attempting" to keep their people safe, but the level of spying on people are too high. I for example don't even know who knows what about me.

    I respect authorities' responsibility to stop crime and terrorism, but it seems there are no oversight on the people supposed to watch over us. More so, these people overreach their boundaries and borders.

    Side note - - - Yes my english is bad but I don't feel bad about it.

    1. SImon Hobson Bronze badge

      Re: Spying on everybody but your own is Okay ?

      but what about other people's right to privacy ?

      We don't count, and as furriners don't have any rights whatsoever as far as the USA is concerned. Basically, the USA attitude is "our laws apply everywhere when it's in our own interests (eg the right to order the handover of any data held anywhere, c.f the CLOUD act); but not if it's not in our interests (eg the right to privacy)"

    2. tom dial Silver badge

      Re: Spying on everybody but your own is Okay ?

      There are, in fact, fairly extensive controls, both legal and practical. US citizens, and noncitizens within US jurisdiction, may not be targeted by US agencies without a warrant issued by a judge based on a reasonably substantial claim of probable cause to believe that he (or she) committed a crime or was about to. "Minimizations" to protect US persons - both citizens and non-citizen residents - are described generally in 50 USC 1881, implemented by extensive procedures within the NSA and Department of Justice, and overseen by the Foreign Intelligence Surveillance Court, composed of federal court judges nominated by a US president and confirmed by the US Senate. It is not clear what countries have tighter legal controls on surveillance of citizens and legal residents. In addition, while the NSA and other intelligence and law enforcement agencies have many employees and very large amounts of computing and communication equipment, only a relatively small fraction of those employees are engaged actively in surveillance and the equipment is capable of collecting and storing only a tiny fraction of all possible communication data. Both impose significant limits on the number of people who can be targeted effectively and the amount of data that can be collected, stored, queried, and analyzed.

      The case at hand is about boundary issues - the circumstances in which data collected for foreign intelligence can be used for surveillance of US citizens and residents. My sense, possibly incorrect, is that the plaintiff's attorneys, expert though they may be, do not have a very strong case and are likely to lose to the government's lawyers, who also are experts in the matters at issue.

      Your English usage, by the way, is entirely adequate, and in fact is better than that of a great many native speakers.

  8. Paul Smith

    One is a police state; the other a democracy.

    I think you meant republic, not democracy.

    If the majority in a democracy decide the police can beat your door down, reason or none, then there is not much you can do about it. In a republic, or a democratic republic, the power of the majority is constrained by a constitution or charter. A simple majority decision is not sufficient to infringe on an individuals rights. A small difference, but an important one.

  9. hapticz

    if some folks decide to flaunt the concept of acting in a manner to preserve life, to not kill for their own purpose and imbue fear into others, then that is rightly deemed an act of war and must be dealt with as such. this is no game of spin the bottle, with innocent bystanders getting blown to bits for some ideological guru to get their rocks off, it is simple survival of life and freedom. as terrorists feel no qualms using any means to force innocents to carry bodybombs into a crowd, the laws must be suspended to deny them the freedom to do that. when lawyers start having their own children explosively splattered across the plazas, they may begin to act with less deference to prior precedents.

    1. Anonymous Coward
      Anonymous Coward

      ...and this, dear reader, is why democracies fail.

      Idiots like this are allowed to vote and their vote counts just as much as someone with intelligence and/or morality who understands that the rule of law MUST be sacrosanct and not be panicked into being suspended for whatever the most recent bogeyman might be.

  10. Adrian 4

    Roper: So now you'd give the Devil benefit of law!

    More: Yes. What would you do? Cut a great road through the law to get after the Devil?

    Roper: I'd cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

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