He's represented by law students? This puts the image in my head of Amanda Seyfried arguing in open court that a teddy bear has rights. I'm actually surprised his case got anywhere, never mind to this level of victory.
No disrespect to any law students, but if you're going to step to the national security state, your law game had better be "A".
So they should have to actually break the law to get justice in a timely fashion? If you're being affected by a law that would see you face criminal charges, challenging it ought to be as timely as those criminal charges; otherwise, it's all too easy to set situations like this up.
While I look forward to the first instance of someone standing up and very publically and broadly violating an NSL to get such an abomination into a real court, that shouldn't be a necessary step. The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long.
>So they should have to actually break the law to get justice in a timely fashion?
Kinda like how you have to show you've been harmed to sue someone. Nice rules in theory, but in practice the government will use them like loopholes to keep themselves out of trouble.
These rules do not exist because the government used them as loopholes, these rules exist because citizens used them as loopholes to sue other citizens :)
The government was already protected.
For example, you literally cannot sue the US government for torts without its permission.
This has been absolute since day 1 of our government.
The government has decided to abrogate immunity in a bunch of situations, but in general, the government was already protected from whatever it wanted to be.
"So they should have to actually break the law to get justice in a timely fashion? "
If you want to multiply the judiciary budget by a factor of 50 (which would be a lot of your tax dollars), yeah, i bet we could make this work, but as to the philosophical question:
Yes. If you have no danger of actually being criminally charged, the courts should be free to resolve the issue at their leisure. Yes, there is a chilling effect, blah blah blah. That is not the same as "some guy gets the death penalty or thrown in prison for life". Courts resolve those issues first, and others second. Period.
" that shouldn't be a necessary step."
Sorry, but i completely disagree. Criminal charges involve possibility of being thrown in prison. Civil things do not.
"The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long."
Remember this the next time the federal judiciary has to sit in front of congress and beg for money to fill the existing vacancies in appeals courts, let alone become large enough to make what you want happen.
The pendency of appeals and length of lawsuits is directly related to docket sizes growing without bound.
Ignoring the gag order would see you thrown in prison. Yes, obviously, a suit to get that law thrown out doesn't take priority over a murder trial, but that doesn't mean it should have the same priority as someone griping about their neighbor's fence color causing them emotional distress, either.
And there's another rather obvious solution to the volume of cases going through the criminal justice system that doesn't involve expanding it to handle that volume...
"Ignoring the gag order would see you thrown in prison. "
Yet the history of our country is one of "commit civil disobedience and deal with consequences if you actually want change". Remember, they were revolutionaries.
"And there's another rather obvious solution to the volume of cases going through the criminal justice system that doesn't involve expanding it to handle that volume...
"
I'm fairly confident, in this case, they are using the gag order as a way to hide investigative methods. It's the same reason they try so hard to suppress stingrays being brought into the light. They don't want their opponent to know what they are looking for or how they find them.
>They don't want their opponent to know what they are looking for or how they find them.
That is a tired old excuse. I think it's safe to say that cat is out of the bag now. The government wants to protect these methodologies from disclosure because they are in fact unconstitutional, and disclosure (as in part of the official public record) threatens existing convictions as well as present and future investigations. Additionally, there is probably more than a little bit of paranoia within gov't that someone might get in hot water over the illegal things they've been up to; though I'll believe that's a real fear after I see a gov't agent actually go to jail.
This really speaks to your ignorance regarding public interest law.
Because cases that have little impact beyond pure Constitutional law often have little profit upside, law clinics are one of the mechanisms by which such cases reach the appellate level and the Supreme Court. The students that work on them often go on to prestigious Federal clerkships, major law firms, etc.
The law clinic at Yale, as one would expect, is extremely well-regarded.
I know gag orders exist in certain frameworks for very well specified amounts of time - like a jury in session, for instance - but being able to gag someone from speaking about warrantless abuses in order to keep them from debating the harm of warrantless abuses is horrific. Thank goodness this court invalidated the order. Whether or not this ruling heads up the chain will likely be indication of how tenuous the FBI assumed this program was to begin with.
I still experience cognitive dissonance when I remember that we have a Democratic president who promised to rein in the NSA in '08. I genuinely wonder how his penchant for secrecy will affect Obama's legacy.
He could basically ignore it. Whos going to enforce it? Only threat is impeachment, but I would doubt that will pass unless the president was trying to damage the nation outright.
Doesn't matter. The President can always run to other executive agencies (Law enforcement agencies instead of intelligence agencies or vice versa), the military, congress, provincial political strongholds, or the public if such a backdoor coup were to be attempted.
Or maybe he realized that there was a lot more votes in being the "guy who shot Osama bin Laden in the face" than in being the "guy who will rein in the NSA." It's basically the same phenomenon that's playing out now with the Republican primary. Talking about cracking down on the NSA will get you some Democratic primary votes, and probably won't lose you any, just like talking about cracking down on illegal immigration will win you Republican primary votes and probably won't lose you any. But come the general election, you're going to have to moderate your position to appeal to the mushy middle.
Instead of the asinine speculation currently below your comment, I thought I'd post a helpful link explaining Obama's relationship with the surveillance state.
Summary: So the Patroit/Freedom Act enables a police state where FBI agents can get all customer information and transaction records from an american company without any judge or warrant involved, and everything stays secret for decades.
(not talking about Presidential Executive Orders yet)
Who wants to engage into any kind of business with an American partner with this kind of police state? I think even in China the police needs to gets warrants.
It's also worth mentioning that the Federal Bureau of Investigations (FBI) also served the non-profit Internet Archive (IA) a National Security Letter (NSL) in 2007.
After a joint lawsuit filing of the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) challenging the NSL, the gag order and the constitutionality of the NSL on behalf of the IA - the FBI withdrew the NSL as well as the gag order. [1]
As such, the gag order and NSL was never invalidated in IA, Brewster Kale (ACLU, EFF) vs. FBI.
A question regarding the appeal process: So if he releases the information before the government reaches the appeal court, is that illegal? Is there normally something that says "You have X time to bring this the the appeal court, if not you loose the right?"
In general, a district court's order is effective immediately, regardless of whether the other party intends to appeal. In a case like this where the activity at issue cannot be "undone" the district court may specify the order to become effective at some point in the future, as here:
> The Court’s order will go into effect in 90 days. Mr. Merrill will remain gagged for that period, in order to allow the government time to decide whether to appeal the decision.
The government has 60 days to file an appeal. But even filing the appeal won't by itself prevent the district court's order from going into effect. It'll have to file a motion for stay, and the appellate court will have to decide to keep the district court order from going into effect pending appeal.
The decision of that motion will be an early look into what the appellate court is thinking. The standard for granting a stay requires the appellate court to conclude that the appellant (here, the government) has a likelihood of succeeding on the merits of the appeal.
And what happens if you deliberately avoid any attempts by them to contact you ? Don't answer the door, don't acknowledge them, dont sign anything, etc. How can you enter into an agreement you haven't even acknowledged ?
45 comments
[ 0.25 ms ] story [ 77.4 ms ] threadNo disrespect to any law students, but if you're going to step to the national security state, your law game had better be "A".
I wouldn't consider over 10% of one's life expectancy (at least for now) to be "speedy"
This is not a criminal prosecution. It is a civil suit.
(Note: A lot of states have deadlines on appeal resolution, etc, for criminal cases)
While I look forward to the first instance of someone standing up and very publically and broadly violating an NSL to get such an abomination into a real court, that shouldn't be a necessary step. The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long.
Kinda like how you have to show you've been harmed to sue someone. Nice rules in theory, but in practice the government will use them like loopholes to keep themselves out of trouble.
The government was already protected.
For example, you literally cannot sue the US government for torts without its permission. This has been absolute since day 1 of our government.
The government has decided to abrogate immunity in a bunch of situations, but in general, the government was already protected from whatever it wanted to be.
If you want to multiply the judiciary budget by a factor of 50 (which would be a lot of your tax dollars), yeah, i bet we could make this work, but as to the philosophical question:
Yes. If you have no danger of actually being criminally charged, the courts should be free to resolve the issue at their leisure. Yes, there is a chilling effect, blah blah blah. That is not the same as "some guy gets the death penalty or thrown in prison for life". Courts resolve those issues first, and others second. Period.
" that shouldn't be a necessary step."
Sorry, but i completely disagree. Criminal charges involve possibility of being thrown in prison. Civil things do not.
"The whole mess needs abolishing, but in the interim, 10 years is about 9.95 years too long."
Remember this the next time the federal judiciary has to sit in front of congress and beg for money to fill the existing vacancies in appeals courts, let alone become large enough to make what you want happen.
The pendency of appeals and length of lawsuits is directly related to docket sizes growing without bound.
And there's another rather obvious solution to the volume of cases going through the criminal justice system that doesn't involve expanding it to handle that volume...
Yet the history of our country is one of "commit civil disobedience and deal with consequences if you actually want change". Remember, they were revolutionaries.
"And there's another rather obvious solution to the volume of cases going through the criminal justice system that doesn't involve expanding it to handle that volume... "
Good luck with that one too :)
I don't know how long these gag orders should remain in force, but they clearly need to expire at some point, and 11 years is clearly long enough.
I hope other NSL recipients are emboldened by this outcome to file similar suits.
That is a tired old excuse. I think it's safe to say that cat is out of the bag now. The government wants to protect these methodologies from disclosure because they are in fact unconstitutional, and disclosure (as in part of the official public record) threatens existing convictions as well as present and future investigations. Additionally, there is probably more than a little bit of paranoia within gov't that someone might get in hot water over the illegal things they've been up to; though I'll believe that's a real fear after I see a gov't agent actually go to jail.
Because cases that have little impact beyond pure Constitutional law often have little profit upside, law clinics are one of the mechanisms by which such cases reach the appellate level and the Supreme Court. The students that work on them often go on to prestigious Federal clerkships, major law firms, etc.
The law clinic at Yale, as one would expect, is extremely well-regarded.
Maybe he really wanted to, but then got told by the NSA that, in fact, he is not allowed to do it, and then got a gag order to speak of it no more.
http://www.newyorker.com/magazine/2013/12/16/state-of-decept...
Who wants to engage into any kind of business with an American partner with this kind of police state? I think even in China the police needs to gets warrants.
edit: added to
After a joint lawsuit filing of the Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU) challenging the NSL, the gag order and the constitutionality of the NSL on behalf of the IA - the FBI withdrew the NSL as well as the gag order. [1]
As such, the gag order and NSL was never invalidated in IA, Brewster Kale (ACLU, EFF) vs. FBI.
[1] https://www.aclu.org/internet-archives-nsl-challenge
> The Court’s order will go into effect in 90 days. Mr. Merrill will remain gagged for that period, in order to allow the government time to decide whether to appeal the decision.
The government has 60 days to file an appeal. But even filing the appeal won't by itself prevent the district court's order from going into effect. It'll have to file a motion for stay, and the appellate court will have to decide to keep the district court order from going into effect pending appeal.
The decision of that motion will be an early look into what the appellate court is thinking. The standard for granting a stay requires the appellate court to conclude that the appellant (here, the government) has a likelihood of succeeding on the merits of the appeal.