A note from a friend involved in a local case challenging NSA spying was waiting for me when I got home tonight:
When I got back to my office after lunch today, I found out the government had submitted their "response" to our wiretap motion - it said, in its entirety: "classified." Their entire legal memo was classified! I got a call from the NYCLU immediately, and spoke to Corey Stoughten, who said this is completely unprecedented and wrong and illegal. So then we were talking about objecting to it, etc, and THEN the order came in from Judge McAvoy summarily denying the whole motion! No hearing, no amicus, no reply, NOTHING! AND the actual order was classified!! Terry wasn't there and then I had to leave, but I just spoke to him on the phone. He said the NYT already called him and he told them what happened. He definitely wants to fight this very strongly - it's just so insane that it's hard to know exactly what to do next. But we want to let people know. At this point any ideas would be appreciated. Thanks, Kathy"
More information on the case can be found in some of my old posts here and at The 10,000 Things.
More to come....
Update: Just received a copy of the order. All that is known of the governments legel memo is the one word...
The Judge's decision:
United States District Court
Northern District of New York
United States of America
Yassin Aref and
Crim No. 04-CR-402
(Hon. Thomas J. McAvoy)
Mar 10 2006
Lawrence K. Baerman, Clerk
Order Denying Defendants' Motion for Reconsideration
THIS MATTER is before the court pursuant to Defendants' Motion for Reconsideration seeking orders suppressing all evidence as tainted by illegal electronic surveillance, dismissing the indictment, and directing the government to affirm or deny the existence of electronic surveillance pursuant to 18 U.S.C. 3504.
In response to Defenants' Motion, the government filed, on March 10, 2006, its in camera, ex parte classified response.
Having considered the government's submission and entered a classified Order on it, it is hereby
ORDERED that the defendants' motion for reconsideration is denied.
ENTERED at Albany, New York this 10th day of March 2006.
Thomas J. McAvoy
The Honorable Thomas J. McAvoy
United States District Judge
Northern District of New York
cc: U.S. Attorney's Office
I am told that the defense attorney's and most likely the NYCLU will definitely be appealing this decision. What shape that will take is unclear. The defense attorney has security clearance yet not only has he not been allowed to see much of the evidence in the case he has not been allowed to see the governments argument against his motion to dimiss nor even the logic and reasoning involved in the Judge's decision to deny his motion.
How do you build a case to appeal a decision you can't read based on an argument you haven't seen?
The government is essentially arguing:
- that they have proof that a crime was committed... but you can't see it.
- that the evidence against the defendant was obtained through a secret program... but you can't be allowed to know how.
- that the secret program was legal... but you can't be allowed to see the argument defending it's legality nor can you be allowed to see the decision of the Judge deciding that the unseen argument is sound.
- that the defendants are guilty as charged and are not allowed to confront the evidence against them.
The governments case is the "trust me baby" argument.
Despite all evidence that the governments domestic spying is completely and totally illegal and unconstitutional the government states that it is not... so there!
Bill of Rights? Bill'o'schmites!
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