sunset from behind the wire

sunset from behind the wire

Tuesday, June 18, 2013

Does it Cut Both Ways?

In George Orwell's (fictional?) dystopian future, the slogans ran this way: FREEDOM is SLAVERY and IGNORANCE is STRENGTH. And this week we have heard President Obama assure us that his domestic surveillance practices are "modest encroachments on privacy." 

BUT DOES IT CUT BOTH WAYS?

President Obama has disclosed that  the US Government has essentially downloaded and stored every computer transaction, e-mail and telephone call since 2006. And this may be the NSA's worst nightmare come true because I see what might be coming down the tracks.

Terrance Brown, 40, is one of five men on trial in federal court, charged with an armored car heist. He knows that the US Government can give him those records that will prove his innocence! Nothing makes the National Security Agency roll its eyes back into its skull and go FULL zombie like a request from a criminal court. Trust me when I tell you that the NSA is unlikely to give up ANY records whether or not there is a subpoena involved. But does that mean that DOJ must dismiss the case? FBI and DOJ are on the horns of a dilemma. Every defendant from now to the end of time will allege that there is exculpating information in phone records if only they were produced (By NSA). AND that DOJ must comply or dismiss.
(Florida South Florida Sun-Sentinal) One South Florida man accused in a series of bank robbery attempts is hoping the recent revelation that the federal government is secretly keeping millions of U.S. phone records could help his defense. 
The FBI and federal prosecutors are using cellphone records in court to try to prove that the five accused men were all nearby when the robbery attempts and planning occurred, as Moss, who is cooperating with the U.S. Attorney's Office, testified. 
The prosecution had told defense attorneys that they were unable to obtain Brown's cellphone records from the period before September 2010 because his carrier, MetroPCS, had not held on to them. 
Not so fast, Brown's attorney Marshall Dore Louis argued in court documents filed in Fort Lauderdale days after the NSA surveillance program was revealed last week. Louis argued in court Wednesday that the government should be forced to turn over phone location records for two cellphones Brown may have used because it could prove he was not present for one of the attempted bank robberies, on July 26 on Federal Highway in Lighthouse Point. 
"The president of the United States has recognized this program has been ongoing since 2006 … to gather the phone numbers [and related information] of everybody including my client in 2010," Louis said. 
U.S. District Judge Robin Rosenbaum agreed to give prosecutors an extra week or two to respond fully after they said they needed more time. 
"There are security procedures that must be followed," Assistant U.S. Attorney Michael Walleisa said of the special protocols the Department of Justice follows when dealing with information, usually used to identify possible terrorist activity, that may have been secretly obtained under the Foreign Intelligence Surveillance Act. 
Prosecutor Michael Gilfarb told the judge that even if the information is available, it may be irrelevant depending on whether Brown carried a phone. 
Brown's wife, Vesta Murat Brown, who testified for the prosecution Wednesday morning, told jurors that her husband didn't have a cellphone at the time but sometimes borrowed phones from her, other family members or friends. 
Local lawyers said they anticipate there will be many more requests for this kind of information now that defense attorneys know the information may have been preserved.
"If the government is spying on our phone calls, it can't then claim in the same breath that it won't provide those calls when it helps the defense. What's good for the goose, is good for the gander," said David Oscar Markus, a defense lawyer.



9 comments:

  1. This could become a court appointed goat rope.

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    1. From an NSA perspective, it's going to be tough to keep this information from the hands of criminal defendants. If the government has exculpatory evidence and fails to provide it, it's grounds for acquittal. I don't know how many prisoners in custody will be filing appeals on that basis, but I am guessing that the number will be in the several tens of thousands.

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  2. Looks like the NSA is hiring. They're going to need more employees to handle these information requests. Obama creates jobs, right?

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    1. Those would be some very high paying jobs and would likely come with non-ObamaCare benefits!!! See, he does care.

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  3. Other (anti-American) countries will read the revelations with breakfast. Only America will mostly hide it from its citizens.

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    1. That's because of the pesky votes.

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  4. Yep, gonna make the criminal courts REAL interesting for the next few years... And Appeals courts are going to fill up quickly too!

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    1. Justice... The NSA works very hard to dodge that bullet, but once the President "owned it", the NSA data base became fair game.

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  5. That will be interesting...but only because of who is in charge. The way I see it, the criminal court has no jurisdiction. Those records are not available for any criminal matter for the prosecution - but what would a judge say.

    ...if I were King for a day (or Director), the order of the day would be - shut up about your 'techniques', if you can't make the case without physical evidence, you can't make your case. Make the next one.

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