Dot Connecting The NSA’s Stories and Reality in Court

Josh Dratel has spent the last few years doing something that few of us really want to do, defending the penniless accused terrorists.  It’s thankless work, given the near impossibility of getting the basic information that would otherwise be offered to the defense of anyone else because of national security.  It’s not so secret that they can’t indict and convict, but it’s far too secret to let even defense counsel with security clearance know about.  An interesting concept of due process.

That made it all the more curious when Josh learned that these  huge secrets were being spilled before Congress in defense of the NSA’s collecting every bit of information that conceivably exists about anyone. 

When a senior FBI official told Congress the role the NSA’s secret surveillance apparatus played in a San Diego terror financing case today, nobody was more surprised to hear it than the defense attorney who fought a long and futile court battle to get exactly the same information while defending the case in court.

“His lawyers — who all have security clearances — we can’t learn about it until it’s to the government’s tactical advantage politically to disclose it,” says New York attorney Joshua Dratel. “National security is about keeping illegal conduct concealed from the American public until you’re forced to justify it because someone ratted you out.”

When it’s a matter of discovery in a federal prosecution, mums the word. When it’s about justifying secret conduct that undermines the integrity of the American government, it becomes a four-part harmony of the greater glory of our nation.  Can you hum a few bars?

When Josh tried to get access to the FISA applications that allowed the government to seize 1800 phone calls and 680 pages of emails, he was stonewalled.

The government fought the request in a 60-page reply brief, much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers. “Confidentiality is critical to national security,” the government wrote (.pdf)

Not that it really mattered:

“Indeed, to the Government’s knowledge, no court has ever suppressed FISA- obtained or -derived information, or held an adversarial hearing on motions to disclose or to suppress,” the government added.

But despite his security clearance, it wasn’t enough that he was deprived of the basic discovery that would otherwise be required in any criminal prosecution. Josh wasn’t even allowed to see the judge’s order denying him access.

U.S. District Judge Jeffrey T. Miller rejected the defense FISA challenge in a secret opinion in June of last year; even Dratel, who has a government security clearance, was not permitted to see the order, he says. The first he learned of the NSA’s role in his client’s case was when Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA’s spying.

CSPAN, the newest delivery method of Rule 16 discovery. Of course, the revelation wasn’t meant for Josh or his client, for whom the concept of due process was nothing more than “trust us.”  This was the means for the government to show the efficacy of its efforts to protect us from terrorism, to thwart the plots that would let the terrorists win by undermining our way of life.  This is why it was important enough to disclose such critical national secrets that couldn’t possibly be revealed to security-cleared lawyers defending people entitled, by law and Constitution, to know the evidence against them.

And they protected us from what?  Well, there is the nightmarish plot to bomb the New York Stock Exchange.

By coincidence, Dratel also represents Sabirhan Hasanoff, who was also cited by Joyce in a surveillance success story. Hasanoff supposedly plotted to blow up the New York Stock Exchange. Hasanoff has pleaded guilty to providing material support to terrorists. But the government’s own sentencing memorandum shows that the defendants called off a proposed plot on their own, without any involvement from federal authorities, and over a year before being arrested.

“There was no plot,” says Dratel. “There was one guy was asked to check out a tourist site downtown. It was a year and a half before they arrested Hasanoff. So if they thought it was really a plot, what were they doing letting him run around?”

You might think it weird that the powerful and important men explaining to Congress how their accumulation of every bit of information they could get their hands on saved America from devastation neglected to mention this.  But given the vast amount of information, how can you reasonably expect them to remember that the plot to blow up the stock exchange was nonsense? These guys  have oodles of info in their heads. They don’t suffer the small stuff.

Even Josh, probably because he took the secrecy a bit personally before he realized that he could get discovery by watching TV, doesn’t appreciate the importance of national security.

“This casts suspicion on everything they say about these programs, and the efficacy of these programs,” says Dratel. “Their notion of transparency is so tired. They have to stop lying to everybody.”

Tired? Maybe  not as tired as he might suspect.

After all, there are plenty of buildings across the nation that nobody blew up, which proves what a great job our government is doing to stop terrorism.  All they have to do to succeed is keep it secret, and Americans certainly appreciate it, even if Josh doesn’t.

H/T Doug Cornelius

14 thoughts on “Dot Connecting The NSA’s Stories and Reality in Court

  1. C. N. Nevets

    All this secrecy about procedures and legal justifications suggests that the intelligence community regards their own meta data as something that must be protected.

  2. nidefatt

    It is getting a little bothersome. State governments are doing the same now, in Idaho R16 was recently changed to allow the government to redact things and place gag orders on defense counsel. Not that I necessarily mind this when I think my client will likely try to go out and intimidate a witness.
    This makes me wonder whether Josh would prefer it if the judges simply closed and sealed off his trial from the public but said he could see all the information he wanted. In other words, is there some middle ground? Judges love “middle ground.”

  3. jt

    Can a defense attorney appeal a secret order that he is not allowed to see? Are the appeals court judges allowed to read it to handle an appeal?

    I assume this is kind of a unique occurrence, but a secret opinion that no one can read seems unconstitutional on its face.

  4. SHG

    Ah, Idaho. Yeah.

    Of course, there is always the middle ground view that if they want to prosecute ’em, then they have to show their hand.  The middle ground is that if the government doesn’t want to offer due process, they can’t prosecute.

  5. Jack S

    Well isn’t that a kick in the nuts… The defense lawyer isn’t even allowed to see the opinion that craps all over his clients rights.

    At least there is some better news: Terrence Brown, a bank robbery suspect wants the NSAs cellular meta-data and it looks like a Judge is at least entertaining the idea – IANAL, but it looks like he ordered the prosecution to get the data and hand it over.

  6. SHG

    One of the things that distinguishes this blawg from, say, Reddit, is that I’m a bit of a stickler for the comments remaining on topic. Your second paragraph, well, goes into a related, and interesting, story, but not the one the post is about.

  7. Alex Bunin

    Not only have Josh and others done this thankless work for years, they are the ones whose calls and emails are actually being read by the government.

  8. SHG

    But they (as well as the defense lawyers at Gitmo) have known their communications were being read. Of course, nobody, outside of those of us involved in criminal defense, cared because it was their communications and not ours. Now, people are outraged to learn it’s not just those nasty terrorist-defending lawyers.

  9. Jack S

    A thousand apologies, sir. I’ll try to stay closer to the topic next time. Though, sometimes you need a little good news to temper the outrage that is rightly caused by stories like this.

  10. SHG

    I understand. If it was a big problem, I would just toss the comment. I’m not shy about stuff like that. I’ve recently had a new non-lawyer commenter who keeps writing about how the answer to all problems is to shoot cops. Her comments will never see the light of day, as I find them fundamentally intolerable. I have a rule, that no one be made stupider by reading anything at SJ.

    Please understand that while I welcome non-lawyers reading and commenting, this remains a law blog, which hopefully illuminates very specific issues with some degree of depth. I’ve written a lot of posts, addressing a lot of very discrete issues, over the years, and find it to be far more useful to focus on specifics than broad generalities. Unfortunately, that means that we suffer the bad with the good.

  11. SHG

    It has nothing to do with guts. It has to do with the fact that you’re insane, you advocate killing cops, and you make anyone who reads your comment stupider for having done so. There is a place for every view on the internet. SJ is not the place for yours, and it will not happen.

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