This was going to be a Google + post, but it got too long,
and I have too much to say on this subject.
I was reading the Washington Post article today about “Secret-court judges upset at portrayal of
‘collaboration’ with government.” I made it to this
paragraph when my mind boggled:
"Still, the former official explained, segregating
relevant facts from classified material is routinely done in criminal
proceedings under the Classified Information Procedures Act. In those cases,
the government can extract the information that is relevant to the defense, the
judge approves it, and it is provided to the defense."
I'm a lawyer and I am flabbergasted. So let me see if I can get this straight:
1. The government collects gobs of data on a "suspect."
I'm a lawyer and I am flabbergasted. So let me see if I can get this straight:
1. The government collects gobs of data on a "suspect."
2. I'm assuming they then have to go to some court of law to get an arrest warrant. But I don't know about this because I do not recall hearing or reading about the trials of suspected "potential" terrorists in the news. This means that either:
(a) There have been no "potential
terrorists" captured by this sweeping NSA surveillance, or,
(b) There have been "potential
terrorists" arrested in secret, tried in secret, convicted in secret,
sentenced in secret, and "punished" in secret.
3. Then, once the Government has an arrest warrant in hand –
assuming they bother with that at all – they arrest the “potential terrorist,”
indict him, and set a trial date.
4. The defendant “potential terrorist” is kindly allowed to
obtain counsel if he can.
5. In the pretrial discovery process, the defense attorney
will issue interrogatories to the prosecution (the Government) for disclosure
of all information and evidence that they plan to introduce at trial, as well
as a witness list.
6. The Government – which has thus far acted entirely in
secret, collecting data on millions of American citizens and foreigners, not
subject to open scrutiny in a public court of law – then decides which
information to give the defense attorney so that she can defend her client. There
are two possibilities:
(a) Once a
suspect has been arrested based upon evidence obtained by the NSA pursuant to
an order issued in secret and not open to public scrutiny, a curtain is drawn
over the illegal and unconstitutional procedures previously followed, and the
Government then plays by all the rules, and so does the court, whether that
court be secret or public; or,
(b) The
Government handles the prosecution of the case in exactly the same way they
handled the investigation, and cherry-pick which items to let the defense have
while retaining the zingers for use at trial.
So, now that I have set out the possible procedure scenarios,
let’s go back and look at the red flags.
If point 2(a) is correct, and there have been no arrests, then
this vast information trawl has yielded no significant counter-terrorism
results, and therefore should be scuttled.
If, however, point 2(b) is correct, then what we have is a
state ruled entirely by the secret police, wherein the Constitution and the
Bill of Rights are only paid lip service. If that is the case – and I suspect
it is – what we have is a police state. In a recent interview,
former Stasi lieutenant colonel Wolfgang Schmidt said that the NSA’s current
program would have been “a dream come true” for the Stasi. “It is the height of
naivete to think that once collected this information won’t be used,” he said.
“This is the nature of secret government organizations."
If that posit is correct, then I believe it is safe to assume
that point 6(b) is correct as well, and that if the justices sitting in judgment
of the defendant observe any rule of law, it is only to salve their own
consciences.
This makes me want to weep.
