Comments on: Ninth Circuit Rules Against the Plaintiffs in Al-Haramain Case http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/ Res ipsa loquitur ("The thing itself speaks") Mon, 23 Nov 2009 19:43:04 +0000 http://wordpress.com/ hourly 1 By: Attorney Files Ethics Complaint Detailing Illegal NSA Surveillance Discovered in the Al-Haramain Case « JONATHAN TURLEY http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2365 Attorney Files Ethics Complaint Detailing Illegal NSA Surveillance Discovered in the Al-Haramain Case « JONATHAN TURLEY Mon, 26 Nov 2007 21:05:02 +0000 http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2365 [...] efforts to use an inadvertently disclosed document in the case. For an earlier entry, click hereBelow is the text of Nelson’s public letter: I am writing on behalf of two attorneys licensed [...] [...] efforts to use an inadvertently disclosed document in the case. For an earlier entry, click hereBelow is the text of Nelson’s public letter: I am writing on behalf of two attorneys licensed [...]

]]> By: Patty C http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2078 Patty C Sun, 18 Nov 2007 20:24:34 +0000 http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2078 This is crazy making! I would invoke the "Cat's Outta the Bag Rule". Why else was everyone in the courtroom but for the fact that the secret info is no longer secret, yet is being suppressed because a (fraudulent) argument was made to slide it back under the secrecy rule? And who decided that, ultimately? The government or the judge? Isn't that one of the standards of review? "...The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”[1] The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.[1]" How can critical evidence alleged to have been obtained, illegally, be suppressed in an action that is based on rights violations induced by the illegal activities employed in gathering such information? As an officer of the court is the judge not responsible for overseeing the "discovery" of this secret info? If so, how can he/she then rule to withhold that same information. This is crazy making! I would invoke the “Cat’s Outta the Bag Rule”.

Why else was everyone in the courtroom but for the fact that the secret info is no longer secret, yet is being suppressed because a (fraudulent) argument was made to slide it back under the secrecy rule?

And who decided that, ultimately? The government or the judge? Isn’t that one of the standards of review?

“…The court held that only the government can claim or waive the privilege, and it “is not to be lightly invoked”, and last there “must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer.”[1] The court stressed that the decision to withhold evidence is to be made by the presiding judge and not the executive.[1]”

How can critical evidence alleged to have been obtained, illegally, be suppressed in an action that is based on rights violations induced by the illegal activities employed in gathering such information?

As an officer of the court is the judge not responsible for overseeing the “discovery” of this secret info? If so, how can he/she then rule to withhold that same information.

]]> By: deeply worried http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2069 deeply worried Sun, 18 Nov 2007 15:01:59 +0000 http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-2069 And of course to add to our banquet of disappointing recent decisions by the varying circuits, was the 6th's handling of the ACLU v NSA case. There was a marvelous if malign circularity to the 6th Circuit's ruling. In essence to have standing to seek remedy, the party must prove injury, but because of the state secrets privilege, the required evidence cannot, in principle, ever be obtained so no one has standing! The opinion: "The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure. See Rakas, 439 U.S. at 133-34. . . . VI. We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction." In Al-Haramain, the evidence was there, but inadmissable.. Professor Turley is right...where's Congress? And of course to add to our banquet of disappointing recent decisions by the varying circuits, was the 6th’s handling of the ACLU v NSA case.

There was a marvelous if malign circularity to the 6th Circuit’s ruling. In essence to have standing to seek remedy, the party must prove injury, but because of the state secrets privilege, the required evidence cannot, in principle, ever be obtained so no one has standing!

The opinion:

“The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure. See Rakas, 439 U.S. at 133-34.

. . .

VI.

We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.”

In Al-Haramain, the evidence was there, but inadmissable..

Professor Turley is right…where’s Congress?

]]> By: Vince Treacy http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-1979 Vince Treacy Fri, 16 Nov 2007 22:21:01 +0000 http://jonathanturley.org/2007/11/16/ninth-circuit-rules-against-the-plaintiffs-in-al-haramain-case/#comment-1979 I agree that this is a very disturbing decision, because it leaves arbitrary, unreviewed power in the hands of whoever is in authority at the moment. It is an essential violation of the right to be secure against unreasonable searches. I agree that this is a very disturbing decision, because it leaves arbitrary, unreviewed power in the hands of whoever is in authority at the moment. It is an essential violation of the right to be secure against unreasonable searches.

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