“By JACK BOUBOUSHIAN

(CN) – A former CIA officer accused of leaking defense secrets will not oppose the government’s motion to seal portions of the upcoming oral argument before the 4th Circuit.

Jeffrey Sterling is accused of leaking classified information to New York Times reporter James Risen, who used the information in Chapter 9 of his 2006 book “State of War.”

Though a federal judge found that Risen does not have to reveal his source because of reporter’s privilege, the government has appealed this issue to the Richmond, Va.-based court.

On April 6, 2012, the court requested the parties’ views “on whether all of the oral argument should be held in a sealed courtroom, or whether the argument should be bifurcated, with a portion of the argument held in an open courtroom, and the portion of the argument related to the classified materials held in a sealed courtroom.”

After the parties conferred, the government responded to the court’s letter with an unopposed motion requesting that the court divide the oral argument in two.

Prosecutors asked that the first and public portion of the oral argument be devoted to “whether intervenor James Risen has a constitutional or common law privilege to refuse to disclose his source.” They said that this issue “will not require the parties to discuss or consult classified materials during oral argument.”

The government requested that the “the second and third issues on appeal – concerning the district court’s discovery order and its order related to witness security – do involve classified information, and the district court’s decisions concerning these matters were announced at sealed hearings conducted pursuant to the Classified Information Procedures Act. It is necessary and appropriate to seal the courtroom during the oral argument concerning these issues.”"

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Appeal

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

SeattlePI.com on February 26, 2012 released the following:

“Classified surveillance conducted prior to arrest

By LEVI PULKKINEN

Federal authorities with a secret warrant were intercepting phone calls related to a planned terrorist attack on a South Seattle military induction center well before the alleged plotters were arrested.

While details remain sparse, court filings in the case against Abu Khalid Abdul-Latif – a SeaTac man accused of plotting to kill dozens of Department of Defense employees at the East Marginal Way South center – show federal agents had been conducting electronic surveillance of Abdul-Latif in the weeks or months before his arrest.

Jailed since June and facing a potential life sentence if convicted of terrorism-related charges, Abdul-Latif is accused of preparing to storm the Military Entrance Processing Station with two other men and open fire there with automatic weapons and grenades. One of his alleged conspirators was actually a government informant who purportedly turned to Seattle police after Abdul-Latif came to him searching for weapons.

U.S. Attorney Jenny Durkan and others were quick to praise the informant in the days after Abdul-Latif and Los Angeles resident Walli Mujahidh were arrested. Mujahidh has since pleaded guilty and is awaiting sentencing.

The informant’s actions – going to police, then working, in essence, as an undercover agent – were presented publicly as the essential break in the case.

Now, though, court documents indicate Abdul-Latif had been under investigation for months before the informant came forward in May.

Abdul-Latif appears to have himself been the target of a wiretap warrant obtained through a secret federal court operating under the Federal Intelligence Surveillance Act, better known as FISA.

Prosecutors have filed notice that they intend to use “information obtained and derived from electronic surveillance” conducted with a warrant issued by the FISA court. What evidence prompted that warrant to be issued remains classified, and almost certainly will not be provided to Abdul-Latif’s defense attorneys or the public.

Created in the late 1970s in an attempt to curtail unjustified surveillance of Americans, the FISA system is a classified forum through which law enforcement agents – chiefly the FBI – can obtain search warrants that will never be fully disclosed to their targets or the public.

Under the FISA process, agents present the closed court with statements asserting they have probable cause to believe their target is an agent of a foreign government or terrorist organization, and receive a warrant to tap the target’s phone or search their property. That probable cause statement remains classified, though it must be provided to the U.S. District Court judge hearing the criminal case if prosecutors hope to present evidence obtained through the FISA warrant at trial.

Some aspects of the FISA system have drawn criticism in recent years, largely because the number of FISA warrants has increased dramatically since the Sept. 11 attacks. Congress has repeatedly expanded the wiretapping authority available through FISA – notably through the FISA Amendments Act in 2008 – but the warrant acquired against Abdul-Latif was most likely a traditional FISA action in line with those initially considered under the law.

Neither the Justice Department nor Abdul-Latif’s attorneys would speak about the case with regard to the secret evidence apparently now in play. Still, there’s reason to believe transcripts of Abdul-Latif’s tapped phone calls may be declassified if the case proceeds to trial.

It also remains unclear whether information obtained through a secret warrant may be introduced in the state criminal case against Michael McCright – a Lynnwood man accused of running two Marines off of Interstate 5 in North Seattle. McCright, a convicted felon also known as Mikhial Jihad, is alleged to have spoken with Abdul-Latif by phone at least three times; prosecutors have not divulged how or when those phone calls were intercepted.

Extent of surveillance unclear

Abdul-Latif and Mujahidh were arrested Jan. 24, less than a month after the informant went to Seattle police and claimed Abdul-Latif was scheming to kill Western Washington soldiers.

The man who would become key to the government’s case against Abdul-Latif met Abdul-Latif several years before. Abdul-Latif, a failed janitor and ex-con who adopted a Muslim name in 2007, had come to believe the man shared his views and willingness to turn to violence, according to charging documents.

“Abdul-Latif said that ‘jihad’ in America should be a ‘physical jihad,’ and not just ‘media jihad,’ expressing his view that it was necessary to take action rather than just talk,” an FBI agent told the court. “Abdul-Latif referred to the 2009 Fort Hood massacre, when a single gunman killed 13 people … (and) said that if one person could kill so many people, three attackers could kill many more.”

Writing the court, the agent said Abdul-Latif was recorded expressing his anger about United States activities in Afghanistan, Iraq and Yemen, and saying that he believed killing American soldiers was justified.

The men had initially aimed at attacking Joint Base Lewis-McChord, but later changed their target to the South Seattle intake center. The facility is next to a day care.

The informant met with Seattle detectives on June 3 and said he’d met with Abdul-Latif four days prior. He then began to divulge details of the purported plot, including that Abdul-Latif had intended to attack the Tacoma base.

In early June, Abdul-Latif and Mujahidh spoke with the informant, offering details on the planned attack, according to charging documents. They met outside the recruiting station and conducted reconnaissance inside the center.

Despite a short stint in the Navy, Abdul-Latif knew little about firearms but believed the informant could assist him in acquiring automatic weapons, according to charging documents.

“Abdul-Latif told the source that he wanted to acquire, for use in the attack, AK-47 assault rifles, a rocket-propelled grenade, grenades, and bulletproof vests,” the FBI agent told the court.

According to charging documents, Abdul-Latif told Mujahidh and the informant their objective was to “take out anybody wearing green or a badge.”

Law enforcement provided the informant with weapons – a Heckler & Koch submachine gun, an M-16-style rifle and a fragmentation grenade – prior to a June 14 meeting. All had been rendered inoperable before the meeting.

Abdul-Latif examined the weapons later that day, according to charging documents. The men then reviewed a map of the center, and Abdul-Latif suggested a plan of attack.

In the days that followed, Abdul-Latif provided the informant with money to buy the weapons, the FBI agent continued. Mujahidh arrived in Seattle on two days before his arrest.

Planning continued through the evening of June 22, when the guns were delivered and the plotters were arrested at a Seattle warehouse, the FBI agent alleged. Mujahidh pleaded guilty in December and may testify against Abdul-Latif if the case goes to trial, which is scheduled to start in early May.

Defense faults prosecutors for secrecy

Following the arrests, the informant drew praise from Durkan and Seattle Police Chief John Diaz. Then as now, authorities contended the informant’s tip to police sparked the sting operation.

“This attack was foiled because of the trust and relationships the men and women of the Seattle Police Department enjoy with our community,” Diaz said at the time. The informant, he continued, “ended the plot intended to take innocent lives.”

Speaking shortly after the arrests, Durkan declined to answer when asked whether Abdul-Latif was being investigated before the informant came to police.

Now, though, attorneys for Abdul-Latif contend investigators were already at work for some time before the informant contacted authorities. They noted that the investigation appears to have begun “months” before the informant became involved.

Contacted for comment, Abdul-Latif’s attorneys declined to expand on the allegation or say whether their client’s phone had been tapped.

Abdul-Latif had for some time been posting videos to Youtube discussing his views on his adopted faith. He praised Anwar al-Awalki – a New Mexico-born recruiter for al-Qaida killed in Yemen by a U.S. missile strike in September – in one of several rambling speeches recorded in his apartment.

In October, federal prosecutors in Seattle filed a single-paragraph notice stating they would be using evidence obtained through electronic monitoring conducted under a FISA warrant. Going forward, it will likely fall to U.S. District Court Judge James Robart to determine what classified material, if any, will be made available to Abdul-Latif’s attorneys.

Without arguing that the government’s claims should be made public, Abdul-Latif’s attorneys have asked that the sealed pleadings be routed to Seattle defense attorney Jeff Robinson, who has been cleared by the Department of Defense to review top secret material.

Prosecutors on the case have endeavored to have their legal arguments heard by Robart privately. Abdul-Latif’s attorneys argue the move violates federal law and, ultimately, endangers their client’s constitutional rights.

“Barring the security-cleared member of the defense team from participating in discovery determinations cripples the adversary process without any commensurate benefit to national security,” Abdul-Latif’s attorneys told the court, noting that Robinson previously reviewed “extremely sensitive” classified information while involved in a military commission trial in Guantanamo Bay.

“Moreover, defense counsel are not clairvoyant,” they continued. “Without access to either the classified evidence or the government’s arguments for non-production, Mr. Abdul-Latif will be deprived of his right to counsel at this stage, and of the other fair trial rights to which he is constitutionally entitled.”

Disclosure requirements still demand prosecutors produce any exculpatory information to Abdul-Latif’s defense. But the court – in this case Judge Robart – may allow the government to delete or redact portions that pose a “reasonable danger” to national security.

Robart has also been tasked with reviewing the propriety of the FISA warrant apparently obtained by investigators. Unlike a standard search or wiretap warrant, though, the defense won’t have an opportunity to review the warrant application.

‘There could be boldface lies’

The law that will govern the court’s handling of classified information in Adbul-Latif’s case – the Classified Information Procedures Act – directs that defendants facing secret evidence “should not stand in a worse position, because of the fact that classified information is involved.” But, as a practical matter, the restrictions make a defense team’s work more difficult.

Robart could order that prosecutors release summaries of classified evidence. Were he to order the government to release the investigator’s statements in full, he’d be the first federal judge to do so.

Josh Dratel, a New York defense attorney with a long record of cases involving secret evidence, said there has been an “explosion” in the number of FISA warrants issued since Sept. 11.

Prosecutors benefit from the secrecy, in part because the defense is unable to challenge the claims that prompted the warrant in the first place, Dratel said.

“It’s not an adversarial process,” Dratel said. “We never see the warrant. …

“There could be just boldface lies, and we’d never get any of that information.”

It’s not yet clear what defense Abdul-Latif will put if the case proceeds to trial.

Abdul-Latif may claim he’s innocent of the allegations against him, or that he was entrapped by the government informant. In court documents, the prosecution has also suggested Abdul-Latif may offer a “mental” defense – that he is either less-culpable or not guilty because of a mental illness.

When all is said and done, Abdul-Latif’s defense attorneys will likely get to see transcripts of the recorded calls at issue in the prosecution. That’s the case in most prosecutions involving warrants issued through the FISA process, said Alex Abdo, a staff attorney with the American Civil Liberties Union’s National Security Project.

“What they’ll normally get at the end of all this is transcripts of the intercepts,” Abdo said. “Those will usually be classified at first. … Sometimes those transcripts are declassified shortly before trial.”

Abdo said the secrecy involved leaves the defense at a disadvantage, chiefly by limiting the opportunities to challenge the prosecution’s claims. He also asserted there has been an erosion of the wall between the national security functions envisioned when the FISA process was created and criminal law enforcement.

State defendant also faces life

What impact, if any, the FISA-obtained evidence could have on McCright’s prosecution in state court also remains unclear.

McCright is accused of swerving at a government-owned sedan carrying a uniformed Marine sergeant and another noncommissioned officer on July 12. Prosecutors also claim McCright had been in contact with Abdul-Latif, a Des Moines man accused of plotting to attack a South Seattle military processing station.

Writing the court, attorneys for McCright characterized the connection put forward by King County prosecutors as “tenuous” and said they have not received any evidence backing the claim. They also noted that McCright, unlike Abdul-Latif and a second man, is not accused of terrorism.

Outlining the allegations related to the July 12 incident, FBI Special Agent Len Carver III said the Marine sergeants left the South Seattle Military Entrance Processing Station – Abdul-Latif’s alleged target – at 4:45 p.m. While the staff sergeant driving the car remained in uniform, the other man had changed into civilian clothing.

The Marines were headed north on Interstate 5 near Northgate when a small blue car sped toward them, Carver told the court. They saw a bearded man with a skull cap behind the wheel, and subsequently identified him as McCright.

Without warning, McCright swerved at the government car, forcing it into the emergency lane, the FBI agent said in court documents. McCright then allegedly pulled in front of the Marines’ vehicle and slammed on his brakes, nearly causing a collision.

The gunnery sergeant riding in the sedan’s passenger seat called 911 and reported the Geo Metro’s license plate number to the police. McCright was arrested on Sept. 8 in Seattle.

What connection McCright had to Abdul-Latif has not been outlined in court documents. Senior Deputy Prosecutor Gary Ernsdorff has said only that McCright’s cell phone was used to call Abdul-Latif prior to Latif’s arrest.

“Investigators have confirmed that the cell phone used by the defendant … was used on at least three occasions to contact Abdul-Latif prior to Latif’s arrest by federal authorities,” Ernsdorff said in court documents. “The FBI is continuing to investigate defendant McCright’s possible connection to domestic terrorism.”

On at least one occasion, FISA-obtained information has been used in state prosecution. No one has suggested it will be in McCright’s case.

McCright faces life in prison if convicted on the second-degree assault charge filed against him. His previous convictions make him eligible for the sentence under Washington’s “three-strikes” law.

Abdul-Latif remains jailed, as does McCright. Both men have pleaded not guilty.”

————————————————————–

Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

————————————————————–

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

The allegations against Ms. Mihalik are substantial. The charge of providing material support to terrorists carries a statutory maximum penalty of 15 years in federal prison. Ms. Mihalik is facing three of these charges. Additionally, the charge of making false statements in a matter involving international terrorism carries a maximum sentence of eight years in federal prison. Even though the charges carry significant maximum penalties, the most unsettling aspect of these charges against Ms. Mihalik is that the charges are premised on classified evidence that neither Ms. Mihalik nor defense counsel has reviewed.

The Foreign Intelligence Surveillance Act (“FISA”) permits the U.S. Government to perform electronic surveillance and physical searches to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. As such, most of the information and evidence collected pursuant to such surveillance and searches pertains to the national defense and is classified. The prosecution may therefore protect the interests of the United States by requesting protective orders or offer to provide redacted summaries of the evidence against the defendant pursuant to the Classified Information Procedure Act (“CIPA”). Nonetheless, CIPA provides the defense with some very valuable tools.

Therefore defense counsel must be familiar with CIPA. Proper access to classified information is critically important to ensuring the government is put to its burden of proof and to afford defense counsel a meaningful opportunity to put forth applicable defenses. However, the defense’s needs are tempered by CIPA to avoid instances of “graymail” by defendants who might threaten to reveal classified information if prosecuted without saying what the evidence was or allowing the court to determine its relevance.

Accordingly, CIPA states that “if a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving criminal prosecution, the defendant shall . . . within 30 days prior to trial . . . notify the attorney for the United States and the court in writing.” Failing to follow such procedure risks empowering the court to deny the defense from accessing, reviewing, disclosing, or otherwise benefiting from classified information in its case. There is also a continuing obligation to disclose and describe any new classified information that may come up. This continuing responsibility states that such disclosures should be made “in writing as soon as possible” to both the attorney for the government and the court.

Defending national security related crimes presents both intellectual and procedural challenges. Defense counsel should therefore be well versed in both national security and criminal jurisprudence.

The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.

Last week, prosecutors in the case of Thomas A. Drake, the former National Security Agency official who is charged with unlawfully retaining classified information that he allegedly disclosed to a reporter, asked the court to hold a pre-trial conference on the use of the Classified Information Procedures Act (CIPA) in that case.

CIPA was passed by Congress in 1980 to regulate the disclosure of classified information in criminal prosecutions, such as espionage cases, and to prevent so-called “graymail,” in which a defendant threatens to release classified information in the hope of forcing the government to abandon the case.

In a nutshell, CIPA requires the defense to notify prosecutors and the court of any classified evidence it intends to introduce.  Courts must then determine if the classified evidence is admissible. If so, the government may propose an unclassified substitution that does not involve classified information.  But if the court finds that the unclassified substitution is inadequate to preserve the defendant’s right to a fair trial, and if the Attorney General objects to disclosure of the classified version, then the indictment may be dismissed.

Perhaps assuming that the judge (or the defense) was unfamiliar with the law, prosecutors in the Thomas Drake case filed a motion (pdf) explaining the meaning of each section of CIPA.

The purpose of their CIPA tutorial was “to inform the Court of the applicability of CIPA and its procedures to issues involving classified information that will arise before and during the trial of this case,” they wrote. See “Government’s Motion for Pretrial Conference Under Section 2 of the Classified Information Procedures Act,” May 5, 2010.

The development and early history of CIPA were reviewed by the Congressional Research Service in a March 2, 1989 report entitled “Classified Information Procedures Act (CIPA): An Overview.”

The use of CIPA to preserve defendants’ rights while protecting classified information in criminal trials presents a stark contrast with the absence of any comparable procedure in civil trials, particularly those in which the government invokes the state secrets privilege to prevent the use of classified evidence.

“For almost 30 years, courts have effectively applied [CIPA] to make criminal trials fairer and safer,” the Senate Judiciary Committee noted in a 2008 report on the pending State Secrets Protection Act.  “Yet in civil cases, litigants have been left behind.”

“Congress has failed to provide clear rules or standards for determining whether evidence is protected by the state secrets privilege. We’ve failed to develop procedures that will protect injured parties and also prevent the disclosure of sensitive information. Because use of the state secrets privilege has escalated in recent years, there’s an increasing need for the judiciary and the Executive to have clear, fair, and safe rules,” the Judiciary Committee report said.

A legislative response to the problems posed by the unilateral use of the state secrets privilege by the executive branch remains to be accomplished.

The fact of the matter is that our justice system has tried terrorists and have been quite successful in doing so.  I did, however, accept one concern in particular.  That is the concern that classified information could be provided to the defense, and subsequently, admitted at trial.  I was concerned about that until I did a little research, and I didn’t have to look far.  An important procedural tool for the prosecution (US Government) in trials for which classified information could be requested.  The Classified Information Procedures Act (CIPA) is used to protect classified information from being revealed in court, or to the defense. 

There are other pieces of legislation that is used to protect sensitive information, but CIPA has been used in recent terror trials, including that of Zacharias Moussaui, who was convicted in a federal court.  The trial of the so-called 20th hijacker was praised by some of the same people who are currently fear-mongering about the KSM trial.  And to my knowledge, no classified or, otherwise sensitive information, was released to the public or to the defense. 

Again, our courts have tried many terrorism suspects, and our prisons currently hold hundreds of terrorists, none of which have escaped.  That’s another point of contention being raised by the right–holding terrorists in our supermax prisons will increase the terror risk.  Unfortunately, these same detractors said nothing about these concerns during the Bush Administration.  And that is the difference, I think.  In their eagerness to damage President Obama, these critics have forgotten that our system of justice is far superior to the messages and tactics of terrorists.

Remember when it was understood that if our nation was forced to change our ways of life, then the same terrorists who were responsible for the 9/11 attacks will have won.  Seems to me that right-wing America has surrendered to cowards like Khalid Sheikh Mohammed.  I will never surrender my way of life, to no one, ever.  Luckily, our nation now has the leadership that understands that the strength of the United States of America is, in a large part, due to our system of justice.  It is time for these terrorists to receive the justice that they deserve, rather that sitting in a military prison without charge.  When justice is served, the world will know that we have not surrendered, and we will have won a small, but significant battle against terrorism.

“The healthy man does not torture others - generally it is the tortured who turn into torturers” Carl Gustav Jung Swiss psychiatrist, Psychologist and Founder of the Analytic Psychology, 1875-1961

An old bill is new again and waiting in committee.  This bill would allow the federal government to cover its ass on things like torture, rendition, and other unsavory acts it seems prone to.  Knowing that this bill sits in a corrupt congress, probably in a corrupt committee, makes it likely to pass. S. 417: State Secrets Protection Act was introduced in the 110th congress as S. 2523.  And of course, it would be a Kennedy who would sponsor it.  J.F. Kennedy would turn over in his grave.  I’m sure he will have some choice words for his brother when they meet again.

Under this bill, Judges in the federal courts would become accomplices in the cover-up.  They would have full discretion on what can and can’t be told to the public, what evidence is allowed or not, how much evidence is allowed, and who can be a part of the case.  They would have full discretion in determining what constitutes harm, who would be harmed, and how to keep that from happening, all while covering up the government’s messes.  This would bury all evidence that the federal government is acting in ways it shouldn’t.  Want to bet that Dick Cheney has his hand on this one???  He has every reason to see something like this bill passed if he isn’t to go to prison for the torture and killing of detainees that he ordered.  There will never be justice in this country again with this bill.

‘Sec. 4051. Definitions

‘In this chapter–

‘(1) the term ‘evidence’ means any document, witness testimony, discovery response, affidavit, object, or other material that could be admissible in court under the Federal Rules of Evidence or discoverable under the Federal Rules of Civil Procedure; and

‘(2) the term ‘state secret’ refers to any information that, if disclosed publicly, would be reasonably likely to cause significant harm to the national defense or foreign relations of the United States.

I’m not sure that we’d ever find out another thing with a bill like this. By the definitions above, the government could claim just about anything is a State Secret. Only problem is, that the federal government isn’t a State. It has nothing to do with States any more and is merely working on taking over total control of any and all living within ANY State.  Once they have total control of the courts, justice is dead.  And torturers and murderers such as dick cheney and his crew will be scott-free!

Sec. 4052. Rules governing procedures related to this chapter

‘(a) Documents- A Federal court–

‘(1) shall determine which filings, motions, and affidavits, or portions thereof, submitted under this chapter shall be submitted ex parte;

‘(2) may order a party to provide a redacted, unclassified, or summary substitute of a filing, motion, or affidavit to other parties; and

‘(3) shall make decisions under this subsection taking into consideration the interests of justice and national security.

Having seen court decisions such as those made against Ramos and Compean, David Olofson, and others, how can we be assured that these Judges aren’t being paid to throw a case the way the federal government wants it to go? How do we trust those placed in charge of these courts when we see them break the laws or disregard those same laws when it suits their purpose?  Why should we trust any Judge that anyone in the federal government decides to appoint?  Did you hear that Janet Napolitano is on the short list for the Supreme Court?  We don’t fire **ck-ups, we promote them!

(b) Hearings-

‘(1) IN CAMERA HEARINGS-

‘(A) IN GENERAL- Except as provided in subparagraph

(B), all hearings under this chapter shall be conducted in camera.

‘(B) EXCEPTION- A court may not conduct a hearing under this chapter in camera based on the assertion of the state secrets privilege if the court determines that the hearing relates only to a question of law and does not present a risk of revealing state secrets.

‘(2) EX PARTE HEARINGS- A Federal court may conduct hearings or portions thereof ex parte if the court determines, following in camera review of the evidence, that the interests of justice and national security cannot adequately be protected through the measures described in subsections (c) and (d).

‘(3) RECORD OF HEARINGS- The court shall preserve the record of all hearings conducted under this chapter for use in the event of an appeal. The court shall seal all records to the extent necessary to protect national security.

Where then will due process come into play?  How can anyone get a fair and impartial hearing with rules such as these?  With bought and paid for Judges no one is safe.  Who will uphold the laws of this once great nation?  Is there any such thing as justice if a law like this is passed???

DUE PROCESS - The idea that laws and legal proceedings must be fair. The Constitution guarantees that the government cannot take away a person’s basic rights to ‘life, liberty or property, without due process of law.’ Courts have issued numerous rulings about what this means in particular cases.

The Fourteenth Amendment prohibits the deprivation of liberty or property without due process of law. A due process claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 69 (1972).

Yet how can there be due process if the federal government can just slap down an affidavit saying its all some gigantic secret and could jeopardize the federal government?  If the federal government was opperating within the laws of these united States, there would be no need for such a law or lawyers and Judges who will be complicit in cover-ups.  Do you think FOIA is going to help you figure things out?  No way!

In the event of an appeal… With a fixed court it doesn’t matter if an appeal is raised. I’ve watched as good people were convicted of crimes that weren’t crimes. David Olofson who was convicted of transferring a machine gun when it was a malfunctioning AR-15. The jury was given tainted instructions, the defense attorneys inadequate to the task of defending him. And the Judge, talk about a piece of work!  The same goes in the cases of Ramos and Compeon.  There should be a way to hold Judges and Prosecutors responsible for their misconduct.

In every way possible this bill makes sure that the federal government can step in at a moments notice and make things disappear if it doesn’t suit their purposes. I can see it now, the end of Justice is at hand. With this bill the government can claim *States’ Secrets* and poof! away goes their problem.

‘Sec. 4053. Procedures for answering a complaint

‘(a) Intervention- The United States may intervene in any civil action in order to protect information the Government determines may be subject to the state secrets privilege.

‘(b) Impermissible as Grounds for Dismissal Prior to Hearings- Except as provided in section 4055, the state secrets privilege shall not constitute grounds for dismissal of a case or claim. If a motion to dismiss or for summary judgment is based in whole or in part on the state secrets privilege, or may be affected by the assertion of the state secrets privilege, a ruling on that motion shall be deferred pending completion of the hearings provided under this chapter, unless the motion can be granted on grounds unrelated to, and unaffected by, the assertion of the state secrets privilege.

‘(c) Pleading State Secrets- In answering a complaint, if the United States or an officer or agency of the United States is a party to the litigation, the United States may plead the state secrets privilege in response to any allegation in any individual claim or counterclaim if the admission or denial of that allegation in that individual claim or counterclaim would itself divulge a state secret to another party or the public. If the United States has intervened in a civil action, it may assert the state secrets privilege in response to any allegation in any individual claim or counterclaim if the admission or denial by a party of that allegation in that individual claim or counterclaim would itself divulge a state secret to another party or the public. No adverse inference or admission shall be drawn from a pleading of state secrets in an answer to an item in a complaint.

‘(d) Supporting Affidavit- In each instance in which the United States asserts the state secrets privilege in response to 1 or more claims, it shall provide the court with an affidavit signed by the head of the executive branch agency with responsibility for, and control over, the asserted state secrets explaining the factual basis for the assertion of the privilege and attesting that personal consideration was given to the assertion of the privilege. The duties of the head of an executive branch agency under this subsection may not be delegated.

So does that make anyone feel better knowing they have to show a Supporting Affidavit? It sure doesn’t impress me any considering that all they have to do is ask someone for their signature, (you scratch my back and I’ll scratch yours!). Nope, I’m not impressed at all. Just more ass covering that means nothing except complicity in whatever. Is there anyone that believes this would be done for REAL legal reasons and not some cover-up?

And this bill ties into another bill that was enacted back in 1980. The Classified Information Procedures Act says basically the same things.  Just how many ways does the federal government think they need to cover themselves is beyond me, but it is clear that the government is being very naughty if they have to keep coming up with bills that allow them to hide information and people if they feel like it. The actual code for this is found HERE:

One thing I noticed immediately about this bill, none of the codes it talks about are linked as most of the other bills are.  Now why would that be?  Are these codes secret?  No, they aren’t.  You can pull them up if you desire.  But they aren’t linked into this document.

And take a guess at which committee has this bill under consideration? Senate Judiciary!! Now there is a big surprise for you huh?  NOT!  Just seeing Senator Feinstein and Senator Orrin Hatch on that committee makes me question whether there is actually anyone in office that works for America any more or if they are all corrupt.

The interests of the *federal government* isn’t that of Americans, it is of those who corrupt and abuse the name of America and of Americans.  The Constitution strictly forbids our government from being engaged in perpetual war.  Yet we haven’t been out of a conflict since Vietnam.

ARTICLE 1, SECTION 8

The Congress shall have Power:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress….

But we already know that Congress frequently ignores the Constitution and goes outside its jurisdictions especially where it concerns taking power unto itself.  Both Congress and the usurper get around that by not declaring war, instead they are helping other countries, promoting democracy and all that garbage.  After all, it isn’t their children dying.  It is the disposable youth of America.  Nor will we mention the fact that this bill destroys the 1st and 14th Amendments.  Once again, Congress strikes at the Constitution they have sworn to uphold and defend.  FIRE THE BASTARDS!

And while Cheney may be old news, he isn’t dead yet.  Some of the bilge he spews is this:

Cheney told U.S. troops, “Your children and my grandchildren will live in freedom tomorrow because of what you’re doing today.” He warned them of continuing threats there, however, saying, “Our coalition still has important work to do.” He added, “Freedom still has enemies here in Afghanistan. And you are here to make those enemies miserable.”

And just how will these children and grandchildren live in Freedom when their parents are killed in illegal wars? How will fighting in Afghanistan and Iraq in any way spread freedom here in these united States?  Especially since the tactics used by this country cause the other countries to hate us. Stop lying and start being honest with yourselves even if not with WE the PEOPLE!  We see through the BS going on and we do not approve.

Please, don’t get me wrong here, I support our troops 110%.  I just don’t support those elected officials who are lying and cheating and filling their pockets with money while our young men and women die or are raped or do the raping.  War is horrible.  War is not needed.  And the way this government treats returning veterans is a crime all its own!

The rest of the bill is just more of the same.  It isn’t a very long bill by some standards but I do wonder that they need yet another bill just to cover their asses. Obviously the government thinks it does.  What are they trying to hide???  A government of lies and liars is what is in Washington today.  This bill, S. 417, is for the sole purpose of allowing the government to cover up for its mistakes, for torture, for those responsible, and the illegal activities it is currently involved in.  A government of honor and justice wouldn’t need a State’s Secrets Bill.

1) the indictment was sufficient to support a conviction of a capital offense;

2) sufficient evidence supported the convictions;

3) the District Court’s application of the Classified Information Procedures Act did not violate the Constitution;

4) a severance motion was properly denied;

5) statements of co-defendants, co-conspirators, and certain third parties were properly admitted at trial;

6) the government withheld exculpatory evidence;

7) there was no merit in co-defendant’s suggestion that “cumulative error” deprived him of a fair trial; and

8) the application of certain enhancements to co-defendant’s sentencing guidelines calculation was not in error. Insofar as co-defendant’s! sentence resulted from the mandatory application of the U.S. Sentencing Guidelines, he is entitled to be resentenced pursuant to U.S. v. Fagans, 406 F.3d 138 (2d Cir. 2005).