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(Uproxx)   It was only a matter of time before defense lawyers started demanding the NSA hand over phone records they believe would exonerate their clients. Consider the floodgates opened   (uproxx.com) divider line 101
    More: Interesting, NSA, telephone tapping, defense lawyers, Florida Area, MetroPCS Communications Inc.  
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6822 clicks; posted to Main » on 13 Jun 2013 at 12:23 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



101 Comments   (+0 »)
   
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2013-06-13 10:59:52 AM  
Get out the popcorn and a comfy chair.
 
2013-06-13 11:05:17 AM  
...and the NSA will just stamp a big NO! on the request and that will be that.
 
2013-06-13 11:12:03 AM  
Does the NSA also have white house phone records for Sept. 11, 2012?
 
2013-06-13 11:18:18 AM  

johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.


Opens some avenues for appeal in the event this happens, though.  I'm not sure the NSA can just say "no" if the judiciary orders them to turn over requests relating to a given phone number.
 
2013-06-13 11:26:16 AM  
THAT'S NOT HOW THE NSA WORKS

/morbo
 
2013-06-13 11:28:02 AM  
NSA - No.

Defense lawyer - Fine.  Judge, we have been denied potentially exculpatory evidence, move to dismiss the case.

Judge - Well...damn Constitution.
 
2013-06-13 11:32:28 AM  
Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.
 
2013-06-13 11:35:45 AM  

nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.


I think the phone company is required (and internet companies) to keep your records for 6 months only.  That might be a factor.
 
2013-06-13 11:44:43 AM  

nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.


Someone didn't rtfa.  His phone company doesn't have records back that far, but it appears the NSA might.
 
2013-06-13 12:12:09 PM  
Classified.

Next?
 
2013-06-13 12:24:19 PM  

Diogenes: Classified.

Next?


THIS
 
2013-06-13 12:26:00 PM  

Diogenes: Classified.

Next?


That's probably what will happen
 
2013-06-13 12:27:09 PM  

jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?


Those were destroyed in WTC #7
 
2013-06-13 12:27:27 PM  
You have a right to see the evidence being presented against you.
 
2013-06-13 12:27:38 PM  
Can they help me find my keys?
 
2013-06-13 12:28:03 PM  

Diogenes: Classified.

Next?


One could easily argue the classified status given the nature and scope of the records
 
2013-06-13 12:30:19 PM  

"It might be a sincere attempt to clear his client, or it might be the single most audacious delaying tactic a lawyer has ever employed. "


Even it's a delaying tactic, they lawyer is supposed to do what's best for his client. At least he's trying something and especially if the defendant is innocent as he claims.

 
2013-06-13 12:30:22 PM  
Good. Harass them into oblivion.
 
2013-06-13 12:30:46 PM  

johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.


It will still potentially scuttle a lot of criminal cases, if the defense can convince the jury that the prosecution (the government) is withholding exoneratory evidence. At very least, it's a headache for prosecutors.
 
2013-06-13 12:30:49 PM  

nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.


And here it is, your moment of zen
 
2013-06-13 12:31:47 PM  

Warlordtrooper: You have a right to see the evidence being presented against you.


The Goverment can't also withhold evidence that may help your case.
 
2013-06-13 12:32:32 PM  

Diogenes: Classified.

Next?


That would be:

I_C_Weener: Defense lawyer - Fine. Judge, we have been denied potentially exculpatory evidence, move to dismiss the case.

Judge - Well...damn Constitution.

 
2013-06-13 12:34:44 PM  
skinink

"It might be a sincere attempt to clear his client, or it might be the single most audacious delaying tactic a lawyer has ever employed. "


Even it's a delaying tactic, they lawyer is supposed to do what's best for his client. At least he's trying something and especially if the defendant is innocent as he claims.


I think if even if your client is guilty as hell I think you can be disbarred for not representing your client fairly.
 
2013-06-13 12:34:57 PM  

ladyfortuna: And here it is, your moment of zen


img.gawkerassets.com
 
2013-06-13 12:35:13 PM  
I was telling a friend of min last night someone was going to do this..
 
2013-06-13 12:37:33 PM  
I can see this revelation causing a billion problems.

Suppose we learn that they monitor internet traffic, as well. Then police agencies across the country will want to know why they can't also have that data to catch child pron lovers and pirates.
 
2013-06-13 12:40:45 PM  

doczoidberg: I can see this revelation causing a billion problems.

Suppose we learn that they monitor internet traffic, as well. Then police agencies across the country will want to know why they can't also have that data to catch child pron lovers and pirates.


Just wait until the police want to start classifying the evidence against you too.
 
2013-06-13 12:42:16 PM  

Warlordtrooper: You have a right to see the evidence being presented against you.


Except if you are an "enemy combatant" on trial at Gitmo.
 
2013-06-13 12:42:59 PM  

skinink: "It might be a sincere attempt to clear his client, or it might be the single most audacious delaying tactic a lawyer has ever employed. "
Even it's a delaying tactic, they lawyer is supposed to do what's best for his client. At least he's trying something and especially if the defendant is innocent as he claims.


Just wait until the divorce attorneys get in on the act.
 
2013-06-13 12:43:36 PM  

vudukungfu: Good. Harass them into oblivion.


I think the NSA has some deep pockets.  Not like it's going to go out of business anytime soon.
 
2013-06-13 12:48:52 PM  

Elandriel: johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.

Opens some avenues for appeal in the event this happens, though.  I'm not sure the NSA can just say "no" if the judiciary orders them to turn over requests relating to a given phone number.


This text is now purple: johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.

It will still potentially scuttle a lot of criminal cases, if the defense can convince the jury that the prosecution (the government) is withholding exoneratory evidence. At very least, it's a headache for prosecutors.


I agree, headache for prosecutors and defendants, but the NSA won't care one bit.
 
2013-06-13 12:49:05 PM  
I keep hearing people saying that they don't care about the NSA spying on them because they're not significant. You have to think beyond yourself. What about the next Martin Luther? The next Joan of Arc? The next Martin Luther King Junior? The next John F. Kennedy? The next John Lennon? The next George Washington?

That's what's so insidious about this -- They're spying on EVERYBODY -- Terrorists and scoundrels, sure. But also America's thinkers, philosophers, teachers, lawyers, politicians, judges, reformers, leaders, and yes all you plumbers, construction workers, and cubicle dwellers, too. Just because you can't think big doesn't mean the government should stop other people from doing so.

Remember, Barack Obama was a "community organizer" before he was a politician. That's a code word for "rabble rouser."  Now the government has the ability to instantly detect these "rabble rousers" and do what? Help them them? Ignore them? Or prevent them from becoming the next Martin Luther, the next John Lennon, or the next president?

Just because you don't care about your personal privacy doesn't mean there isn't a reason to care about the concept of personal privacy.
 
2013-06-13 12:49:30 PM  
Apres moi, le deluge
 
2013-06-13 12:51:04 PM  

johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.


For freedoms and security due to a secret interpretation of the patriot act that does not include doing anything helpful with it.
 
2013-06-13 12:54:55 PM  
First, what is MetroPCS, and  WHY do they not keep records? My daughter has a pre-paid phone, and I can go online and view her call history.

Second...Although I believe that the NSA has been doing no-no's and keeping secrets, I'm pretty sure this guy's phone records did not make their desk nor would they still have access.
 
2013-06-13 12:56:50 PM  

jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012 10, 2001?

Fixed that for you.
 
2013-06-13 12:58:50 PM  

doczoidberg: I can see this revelation causing a billion problems.

Suppose we learn that they monitor internet traffic, as well. Then police agencies across the country will want to know why they can't also have that data to catch child pron lovers and pirates.


That's the FBI's domain, and they do it, and they arrest people all the time.

/Don't bother clearing your browser history
//It's too late
 
2013-06-13 01:00:02 PM  

take_flight: First, what is MetroPCS, and  WHY do they not keep records? My daughter has a pre-paid phone, and I can go online and view her call history.

Second...Although I believe that the NSA has been doing no-no's and keeping secrets, I'm pretty sure this guy's phone records did not make their desk nor would they still have access.


How long records are kept depends on the company
 
2013-06-13 01:01:10 PM  
i.imgur.comi.imgur.com
 
ows
2013-06-13 01:04:38 PM  

Mcavity: I was telling a friend of min last night someone was going to do this..


is her friend hot? she sounds hot.
 
2013-06-13 01:07:02 PM  

Diogenes: Classified.

Next?


If the NSA argues that it is information that hasn't got any privacy implications because it is just the meta-data, why would the information need to be classified? Obviously it doesn't matter who has the information.
 
2013-06-13 01:35:05 PM  
The NSA is doing a great public service.
I no longer have to back up ANYTHING!
So long, Carbonite!
 
2013-06-13 01:39:45 PM  

DerAppie: Diogenes: Classified.

Next?

If the NSA argues that it is information that hasn't got any privacy implications because it is just the meta-data, why would the information need to be classified? Obviously it doesn't matter who has the information.


Oh, there's a way.

NSA can claim that turning over the data would reveal information about how it is collected from providers or sorted by the NSA, revealing details about how PRISM runs, for example - it only has to pass the most basic smell test (rotten garbage is OK, dead hooker is not).

NSA can also (IIRC) take the judge (and both lawyers?) aside and explain [REDACTED] - or even a one-line note from Holder or the DNI - so now the judge sides with the NSA that this info is secret. For the purposes of the trial, it doesn't exist.

But NSA will absolutely try to have its cake ("secret" metadata collection) and eat it too (not have to provide it to individuals to prove their innocence).

// THIS is part of the Pandora's Box we were warning you about for the last 4 presidential terms
 
2013-06-13 01:40:47 PM  

johnnieconnie: Elandriel: johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.

Opens some avenues for appeal in the event this happens, though.  I'm not sure the NSA can just say "no" if the judiciary orders them to turn over requests relating to a given phone number.

This text is now purple: johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.

It will still potentially scuttle a lot of criminal cases, if the defense can convince the jury that the prosecution (the government) is withholding exoneratory evidence. At very least, it's a headache for prosecutors.

I agree, headache for prosecutors and defendants, but the NSA won't care one bit.


Well... considering how many prosecutors make runs for higher office, and end up as governors/reps/senators -- it could become an issue. They'll remember how much of a pain in the ass this all was.
 
2013-06-13 01:50:29 PM  
What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?
I had two cell phones (that you know about) an neither one of them connected to a tower near the bank? Oh good, you left them home and just took a Tracphone with you to the robbery.
I have records showing that my phone was connected to a tower 45 miles away from the bank, and it had called a friend's cellphone which proves I was chatting about boobies and NOT robbing a bank? So your phone called another phone. You're not the only one who can push buttons on it.

Gotta admit the lawyer has some stones for doing this, though.
 
2013-06-13 01:55:10 PM  

MythDragon: What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?
I had two cell phones (that you know about) an neither one of them connected to a tower near the bank? Oh good, you left them home and just took a Tracphone with you to the robbery.
I have records showing that my phone was connected to a tower 45 miles away from the bank, and it had called a friend's cellphone which proves I was chatting about boobies and NOT robbing a bank? So your phone called another phone. You're not the only one who can push buttons on it.

Gotta admit the lawyer has some stones for doing this, though.



The standard is 'reasonable doubt'.
 
PJ-
2013-06-13 01:55:33 PM  

MythDragon: What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?
I had two cell phones (that you know about) an neither one of them connected to a tower near the bank? Oh good, you left them home and just took a Tracphone with you to the robbery.
I have records showing that my phone was connected to a tower 45 miles away from the bank, and it had called a friend's cellphone which proves I was chatting about boobies and NOT robbing a bank? So your phone called another phone. You're not the only one who can push buttons on it.

Gotta admit the lawyer has some stones for doing this, though.


Makes you wonder, how did they catch criminals before cell phones were available to everybody.  Oh right, the only thing your phones proves is that it was sitting home, but no actual proof that you were there with it.
 
2013-06-13 01:55:59 PM  

Half Right: take_flight: First, what is MetroPCS, and  WHY do they not keep records? My daughter has a pre-paid phone, and I can go online and view her call history.

Second...Although I believe that the NSA has been doing no-no's and keeping secrets, I'm pretty sure this guy's phone records did not make their desk nor would they still have access.

How long records are kept depends on the company


Your right about the data retention policies. The issue become that MetroPCS deletes their records after a certain number of days. However if the NSA happens to have a copy of those records than the evidence that could be used to exonerate the client is available.

Not sure how much state secrets privilege would help for keeping it out of court, especially if they narrow it down to just that one person. The record will say "blah" and will either help or hurt one side of the case.
 
2013-06-13 01:58:38 PM  

jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?


I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.
 
2013-06-13 01:59:55 PM  

dr_blasto: jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?

I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.


3.bp.blogspot.com
 
2013-06-13 02:00:54 PM  

Elandriel: johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.

Opens some avenues for appeal in the event this happens, though.  I'm not sure the NSA can just say "no" if the judiciary orders them to turn over requests relating to a given phone number.


That is an amazing amount of faith in the legality of an organization that has operated outside the law for a LONG time.

Can you prove they have the records?  No of course you can't.  Case closed.  "No such record exists".  The irony here is that is how unions typically deal with discovery requests they don't like.  They simply say "we have no such record" and unless you can prove otherwise, you are screwed.  Meanwhile the record you want is in the box, right where it should be, and no one ever even looked.
 
2013-06-13 02:05:22 PM  

BafflerMeal: dr_blasto: jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?

I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.

[3.bp.blogspot.com image 597x647]


Hey, man, my comment was just as relevant to the conversation as his was.
 
2013-06-13 02:08:27 PM  

dr_blasto: BafflerMeal: dr_blasto: jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?

I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.

[3.bp.blogspot.com image 597x647]

Hey, man, my comment was just as relevant to the conversation as his was.



Oh I know, sometimes I just get all stream consciousness when reading threads and 'let's ride bikes' seemed like too far to go with where my brain was, so 'let's do coke!'  It's one helluva drug.
 
2013-06-13 02:09:38 PM  
Just waiting for the class action guy's to go for  the violating peoples privacy.
 
2013-06-13 02:15:32 PM  
Wonder if he could file under FOIA to see his own records?
 
2013-06-13 02:15:48 PM  
fbcdn-sphotos-f-a.akamaihd.net
 
2013-06-13 02:23:27 PM  

Kahabut: Can you prove they have the records? No of course you can't. Case closed. "No such record exists". The irony here is that is how unions typically deal with discovery requests they don't like. They simply say "we have no such record" and unless you can prove otherwise, you are screwed. Meanwhile the record you want is in the box, right where it should be, and no one ever even looked.


As long as the jury is bound by "reasonable doubt", the government's refusal to provide records we now know them to have is more than sufficient grounds for acquittal. The defense attorney only need reference them as "prejudicially-withheld, factually-existent-but-officially-'non-existent', potentially-exculpatory record-evidence" in their arguments and/ or statements to signal to the jury that the government is systemically "dealing from the bottom of the deck" in adjudicating the case at hand. Any conscientious juror will immediately understand the government is deliberately withholding crucial evidence in the case, and jury-nullification will result.


Remember: they are all on the same team. You, as a juror are *not* part of that team. You are the very last line of defense the defendant has to keep the governmental juggernaut from steamrolling them.
 
2013-06-13 02:25:41 PM  
further, your honor, we have like all this PSHAW EVIDENCE about how he like didn't pay his hospital bill and stuff.
 
2013-06-13 02:30:16 PM  

HAMMERTOE: Kahabut: Can you prove they have the records? No of course you can't. Case closed. "No such record exists". The irony here is that is how unions typically deal with discovery requests they don't like. They simply say "we have no such record" and unless you can prove otherwise, you are screwed. Meanwhile the record you want is in the box, right where it should be, and no one ever even looked.

As long as the jury is bound by "reasonable doubt", the government's refusal to provide records we now know them to have is more than sufficient grounds for acquittal. The defense attorney only need reference them as "prejudicially-withheld, factually-existent-but-officially-'non-existent', potentially-exculpatory record-evidence" in their arguments and/ or statements to signal to the jury that the government is systemically "dealing from the bottom of the deck" in adjudicating the case at hand. Any conscientious juror will immediately understand the government is deliberately withholding crucial evidence in the case, and jury-nullification will result.


Remember: they are all on the same team. You, as a juror are *not* part of that team. You are the very last line of defense the defendant has to keep the governmental juggernaut from steamrolling them.


You are deeply confused.  You haven't the slightest idea how a subpoena works.  You also haven't got a clue as to how a jury works.

In reality, this is exactly what will happen.
Defense creates a subpoena for the NSA records (no one has seen these records yet, so no one even knows for sure they exist)
Prosecution waits
NSA responds with "no such record"
Defense gets prissy and involves the judge.
Prosecution creates a laundry list of reasons why this isn't a legit line of inquiry.  First among them is "the records simply don't exist".
Judge orders NSA to hand over ALL RELEVANT RECORDS
NSA hands over nothing and claims they have no records on the person in question.
That's it.  It's over.  The jury will never even hear about the NSA or the phantom records.


The only thing that changes this is if you can PROVE the NSA has the records you want.  You can't, so that's not really a valid point.  However, I know you will bring it up (again) despite the fact that you don't KNOW shiat about what the NSA does or doesn't have.
 
2013-06-13 02:33:40 PM  

Kahabut: HAMMERTOE: Kahabut: Can you prove they have the records? No of course you can't. Case closed. "No such record exists". The irony here is that is how unions typically deal with discovery requests they don't like. They simply say "we have no such record" and unless you can prove otherwise, you are screwed. Meanwhile the record you want is in the box, right where it should be, and no one ever even looked.

As long as the jury is bound by "reasonable doubt", the government's refusal to provide records we now know them to have is more than sufficient grounds for acquittal. The defense attorney only need reference them as "prejudicially-withheld, factually-existent-but-officially-'non-existent', potentially-exculpatory record-evidence" in their arguments and/ or statements to signal to the jury that the government is systemically "dealing from the bottom of the deck" in adjudicating the case at hand. Any conscientious juror will immediately understand the government is deliberately withholding crucial evidence in the case, and jury-nullification will result.


Remember: they are all on the same team. You, as a juror are *not* part of that team. You are the very last line of defense the defendant has to keep the governmental juggernaut from steamrolling them.

You are deeply confused.  You haven't the slightest idea how a subpoena works.  You also haven't got a clue as to how a jury works.

In reality, this is exactly what will happen.
Defense creates a subpoena for the NSA records (no one has seen these records yet, so no one even knows for sure they exist)
Prosecution waits
NSA responds with "no such record"
Defense gets prissy and involves the judge.
Prosecution creates a laundry list of reasons why this isn't a legit line of inquiry.  First among them is "the records simply don't exist".
Judge orders NSA to hand over ALL RELEVANT RECORDS
NSA hands over nothing and claims they have no records on the person in question.
That's it.  It's over.  The jury will never even he ...



Yep, It'll be similar to the guys dying from cancer due to open air chemical burning at Groom Lake.

government:  There is no such facility
defense:        I can take you and show you judge
judge:            Well the government says it doesn't exist.  good enough for me.  enjoy your cancer.
 
2013-06-13 02:40:11 PM  

I_C_Weener: NSA - No.

Defense lawyer - Fine.  Judge, we have been denied potentially exculpatory evidence, move to dismiss the case.

Judge - Well...damn Constitution.


SO MUCH VERY THIS!!!
 
2013-06-13 02:42:00 PM  
subby: Consider the flood gates opened.

doczoidberg: I can see this revelation causing a billion problems.

Suppose we learn that they monitor internet traffic, as well. Then police agencies across the country will want to know why they can't also have that data to catch child pron lovers and pirates.


Thanks for clearing up what subby meant.
 
2013-06-13 02:43:53 PM  

Virulency: Diogenes: Classified.

Next?

That's probably what will happen


Or:

OK. The 50,000 acre warehouse is right over here. You'll need a lot of bankers boxes.
 
2013-06-13 02:44:21 PM  

MythDragon: What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?


It tells you what the nearest cell tower was.
 
2013-06-13 02:44:58 PM  

BafflerMeal: dr_blasto: BafflerMeal: dr_blasto: jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?

I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.

[3.bp.blogspot.com image 597x647]

Hey, man, my comment was just as relevant to the conversation as his was.


Oh I know, sometimes I just get all stream consciousness when reading threads and 'let's ride bikes' seemed like too far to go with where my brain was, so 'let's do coke!'  It's one helluva drug.


He's talking about the  Benghazi  incident. Heard of it lately?
 
2013-06-13 02:55:01 PM  

Intrepid00: Warlordtrooper: You have a right to see the evidence being presented against you.

The Goverment can't also withhold evidence that may help your case.


No they can't. It's violates constitutional due process as laid out in Brady v Maryland. A prosecutor must disclose all evidence for or against the defendant, even if not asked for it. Not doing so violates the prosecutor duty to seek justice.
 
2013-06-13 02:57:48 PM  

This text is now purple: MythDragon: What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?

It tells you what the nearest cell tower was.


Did you not read the rest of what I posted? Literaly the next Goddamn sentance? Where I said all it proves is that your cellphone, not you was near the tower
 
2013-06-13 02:58:20 PM  

show me: BafflerMeal: dr_blasto: BafflerMeal: dr_blasto: jehovahs witness protection: Does the NSA also have white house phone records for Sept. 11, 2012?

I was riding my bike home from work yesterday and the ice I put in my water bottle melted really fast because it was really warm out. I prefer the water to be somewhat cold and it wasn't. That made it less than satisfying when I had the opportunity to take a drink. I did see someone driving an old but restored 60's era Stingray Corvette, that thing was neat.

[3.bp.blogspot.com image 597x647]

Hey, man, my comment was just as relevant to the conversation as his was.


Oh I know, sometimes I just get all stream consciousness when reading threads and 'let's ride bikes' seemed like too far to go with where my brain was, so 'let's do coke!'  It's one helluva drug.

He's talking about the  Benghazi  incident. Heard of it lately?


Tell me about it, I'm interested. Let's start with the WH phone records being particularly relevant.
 
2013-06-13 02:59:07 PM  

Martycrane: Intrepid00: Warlordtrooper: You have a right to see the evidence being presented against you.

The Goverment can't also withhold evidence that may help your case.

No they can't. It's violates constitutional due process as laid out in Brady v Maryland. A prosecutor must disclose all evidence for or against the defendant, even if not asked for it. Not doing so violates the prosecutor duty to seek justice.


Misread can't for can. Stupid me, I apologize
 
2013-06-13 03:00:04 PM  

Kahabut: The only thing that changes this is if you can PROVE the NSA has the records you want. You can't, so that's not really a valid point. However, I know you will bring it up (again) despite the fact that you don't KNOW shiat about what the NSA does or doesn't have.


As a juror, you don't have to "prove" anything. All you have to do is "doubt".

The tone of your post makes it sound like you're a member of the very system I was referring to.
 
2013-06-13 03:04:39 PM  
I think this shows us something....namely *innocent* people who might be wrongfully accused actually stand to benefit from monitoring.

I'd rather have a cop stop me with a camera rolling because I trust myself; but not the cop.

It seems like the only people who benefit from privacy are criminals!
 
2013-06-13 03:05:18 PM  

dr_blasto: Tell me about it, I'm interested. Let's start with the WH phone records being particularly relevant.


Beats me. I was just pointing out that he didn't put down 2012 by mistake, that he actually meant 2001, as someone else upthread seemed to imply.

/Nothing to see here, move along.
 
2013-06-13 03:05:29 PM  

BafflerMeal: Kahabut: HAMMERTOE: Kahabut: Can you prove they have the records? No of course you can't. Case closed. "No such record exists". The irony here is that is how unions typically deal with discovery requests they don't like. They simply say "we have no such record" and unless you can prove otherwise, you are screwed. Meanwhile the record you want is in the box, right where it should be, and no one ever even looked.

As long as the jury is bound by "reasonable doubt", the government's refusal to provide records we now know them to have is more than sufficient grounds for acquittal. The defense attorney only need reference them as "prejudicially-withheld, factually-existent-but-officially-'non-existent', potentially-exculpatory record-evidence" in their arguments and/ or statements to signal to the jury that the government is systemically "dealing from the bottom of the deck" in adjudicating the case at hand. Any conscientious juror will immediately understand the government is deliberately withholding crucial evidence in the case, and jury-nullification will result.


Remember: they are all on the same team. You, as a juror are *not* part of that team. You are the very last line of defense the defendant has to keep the governmental juggernaut from steamrolling them.

You are deeply confused.  You haven't the slightest idea how a subpoena works.  You also haven't got a clue as to how a jury works.

In reality, this is exactly what will happen.
Defense creates a subpoena for the NSA records (no one has seen these records yet, so no one even knows for sure they exist)
Prosecution waits
NSA responds with "no such record"
Defense gets prissy and involves the judge.
Prosecution creates a laundry list of reasons why this isn't a legit line of inquiry.  First among them is "the records simply don't exist".
Judge orders NSA to hand over ALL RELEVANT RECORDS
NSA hands over nothing and claims they have no records on the person in question.
That's it.  It's over.  The jury will neve ...


Well, that's the reason the NSA is also known as No Such Agency.
 
2013-06-13 03:06:59 PM  

MythDragon: This text is now purple: MythDragon: What no one seems to be catching yet is how that would be useless in proving him not guilty. Even if you get the phone records, what does that prove?

It tells you what the nearest cell tower was.

Did you not read the rest of what I posted? Literaly the next Goddamn sentance? Where I said all it proves is that your cellphone, not you was near the tower


It's on the prosecution to prove it wasn't you on the phone.

Ironically, the NSA might know that, too.
 
2013-06-13 03:08:15 PM  

This text is now purple: Did you not read the rest of what I posted? Literaly the next Goddamn sentance? Where I said all it proves is that your cellphone, not you was near the tower

It's on the prosecution to prove it wasn't you on the phone.

Ironically, the NSA might know that, too.


I actually have two cell phones. Every now and again, I call one phone from the other. Occasionally, while the phones are in different cities. I wonder what the NSA makes of that.
 
2013-06-13 03:10:45 PM  
Ya know, "I told ya so" is just exactly like peeing yourself in a black wool suit.

Now everybody wants some.
 
2013-06-13 03:13:27 PM  
At the photo store, you can still buy metal lined bags for film to stop radiation fogging.
It blocks all kinds of radiation.
 
2013-06-13 03:14:44 PM  

HAMMERTOE: Kahabut: The only thing that changes this is if you can PROVE the NSA has the records you want. You can't, so that's not really a valid point. However, I know you will bring it up (again) despite the fact that you don't KNOW shiat about what the NSA does or doesn't have.

As a juror, you don't have to "prove" anything. All you have to do is "doubt".

The tone of your post makes it sound like you're a member of the very system I was referring to.


As a juror, you'll never ever hear about these records, unless they are produced, and they have very very little chance of ever being produced.  In a court room, you can't present evidence that doesn't exist.  The evidence doesn't exist until it's produced.  Do you see the problem here?

You seem to fail to understand, or you are simply "anti-establishment" to the point of idiocy.  I don't care which.

I'm a member of the system, as are you.  I'm a citizen of the United States of America.  The difference is I'm a grown up and I know how the system actually works.
 
2013-06-13 03:24:54 PM  

Kahabut: You seem to fail to understand, or you are simply "anti-establishment" to the point of idiocy. I don't care which.

I'm a member of the system, as are you. I'm a citizen of the United States of America. The difference is I'm a grown up and I know how the system actually works.


Correct on one point. However, you're mistaken if you think I don't know how the system works. I understand it all too well. Especially the role of the juror. The juror is the only entity the defendant has to keep the Justice System from railroading them. This is *exactly* why the juror exists in the first place.
 
2013-06-13 03:31:02 PM  

HAMMERTOE: Kahabut: You seem to fail to understand, or you are simply "anti-establishment" to the point of idiocy. I don't care which.

I'm a member of the system, as are you. I'm a citizen of the United States of America. The difference is I'm a grown up and I know how the system actually works.

Correct on one point. However, you're mistaken if you think I don't know how the system works. I understand it all too well. Especially the role of the juror. The juror is the only entity the defendant has to keep the Justice System from railroading them. This is *exactly* why the juror exists in the first place.


Maybe.  I don't actually see it that way, but then, the system likes me.

It's still not relevant to the point at hand though.
 
2013-06-13 03:32:35 PM  

Kahabut: HAMMERTOE: Kahabut: The only thing that changes this is if you can PROVE the NSA has the records you want. You can't, so that's not really a valid point. However, I know you will bring it up (again) despite the fact that you don't KNOW shiat about what the NSA does or doesn't have.

As a juror, you don't have to "prove" anything. All you have to do is "doubt".

The tone of your post makes it sound like you're a member of the very system I was referring to.

As a juror, you'll never ever hear about these records, unless they are produced, and they have very very little chance of ever being produced.  In a court room, you can't present evidence that doesn't exist.  The evidence doesn't exist until it's produced.  Do you see the problem here?

You seem to fail to understand, or you are simply "anti-establishment" to the point of idiocy.  I don't care which.

I'm a member of the system, as are you.  I'm a citizen of the United States of America.  The difference is I'm a grown up and I know how the system actually works.


"That's what they want you to think!!!"

The idea that the NSA somehow has, in their treasure trove of "metadata", sekrit evidence that would "exonerate" someone or other, and they can be compelled to produce said evidence with only that as compulsion, proves your point--that people don't know how the legal system works. Including, apparently, the lawyer who asked for said evidence.

To prove innocence (or, for that matter, guilt), the attorney needs to show his client was presumably not at a location on a given date. Either you can show this, or you cannot. This concept that the NSA (or anyone) has some stash of phone records that would "prove" Mr. X was somewhere else despite the prosecution's claim that he was at the scene of the crime, and they are feloniously hiding this proof is just mind-boggling. Or, in the case of a financial crime, if the "proof" is that certain wire transfers did not take place, the NSA wouldn't be magically hiding that evidence that Mr. X's attorney couldn't get some other way.

But either way, what Mr. X needs is A DATE (or dates). Either there is proof of that date or transaction--which he has--or there isn't. More records before or after that date from the NSA isn't going to make him more innocent just because there are more of them. And if they say "No, we don't have any evidence that Mr. X called from the Bahamas, but we do have evidence he was in New York just like the prosecutor says," what does that prove? Can he still insist Well, they have the exonerating evidence in their vaults but they're refusing to release it? How paranoid do we let him get before we admit there just IS NO EVIDENCE?
 
2013-06-13 03:52:14 PM  

Gyrfalcon: This concept that the NSA (or anyone) has some stash of phone records that would "prove" Mr. X was somewhere else despite the prosecution's claim that he was at the scene of the crime, and they are feloniously hiding this proof is just mind-boggling. Or, in the case of a financial crime, if the "proof" is that certain wire transfers did not take place, the NSA wouldn't be magically hiding that evidence that Mr. X's attorney couldn't get some other way.

But either way, what Mr. X needs is A DATE (or dates). Either there is proof of that date or transaction--which he has--or there isn't. More records before or after that date from the NSA isn't going to make him more innocent just because there are more of them. And if they say "No, we don't have any evidence that Mr. X called from the Bahamas, but we do have evidence he was in New York just like the prosecutor says," what does that prove? Can he still insist Well, they have the exonerating evidence in their vaults but they're refusing to release it? How paranoid do we let him get before we admit there just IS NO EVIDENCE?


First of all, the entire reason for the surveillance is the detection of criminals via computational review of cell phone data. Maybe the contents of phone calls; maybe not. But certainly the data regarding the phone calls their selves. Where they were made from, when they were made, and to whom they were made. This much has already been established and isn't even being denied.

If a defendant is accused of being at a certain location committing a murder and knows he or she made a cell phone call from a different geographical location to a certain person, what's the harm in using the NSA's records to establish this exculpatory evidence? After all "National Security" is not exclusionary. It is the sum of all personal securities in the country. We pay for this agency. Why should its records be denied us when they might be useful in providing our security from unjust imprisonment? DNA evidence is already used both ways.
 
2013-06-13 03:54:39 PM  

Gyrfalcon: "That's what they want you to think!!!"

The idea that the NSA somehow has, in their treasure trove of "metadata", sekrit evidence that would "exonerate" someone or other, and they can be compelled to produce said evidence with only that as compulsion, proves your point--that people don't know how the legal system works. Including, apparently, the lawyer who asked for said evidence.

To prove innocence (or, for that matter, guilt), the attorney needs to show his client was presumably not at a location on a given date. Either you can show this, or you cannot. This concept that the NSA (or anyone) has some stash of phone records that would "prove" Mr. X was somewhere else despite the prosecution's claim that he was at the scene of the crime, and they are feloniously hiding this proof is just mind-boggling. Or, in the case of a financial crime, if the "proof" is that certain wire transfers did not take place, the NSA wouldn't be magically hiding that evidence that Mr. X's attorney couldn't get some other way.

But either way, what Mr. X needs is A DATE (or dates). Either there is proof of that date or transaction--which he has--or there isn't. More records before or after that date from the NSA isn't going to make him more innocent just because there are more of them. And if they say "No, we don't have any evidence that Mr. X called from the Bahamas, but we do have evidence he was in New York just like the prosecutor says," what does that prove? Can he still insist Well, they have the exonerating evidence in their vaults but they're refusing to release it? How paranoid do we let him get before we admit there just IS NO EVIDENCE?


Well, even before that point, you have to understand that in a court of law, "evidence" is the stuff you can show.  IE: papers, objects, video. You can also subpoena anything you want, even if it doesn't exist.  I have in the past filed subpoena's for things I KNEW didn't exist, just to see how and how long it would take for a response.  Which was then used as evidence they were lying.  (it's complicated)

So, that leads us to the point where the NSA plays the "plausible" deniability game.  You aren't allowed to go into their record s and look around, and your subpoena can therefore be defeated by simply responding with "no records".  Even if there ARE records, if you can't prove that (IE you have a copy of the index file), then you can't do shiat about it.

The NSA has no interest, no reason, and no precedent of playing ball here.  Meaning that if they even bother to respond, it's going to be a perfunctory "no records".

Legally, they are required to hand over those records.  But Legally, you can't actually force them to do so without prior evidence of the records existence, and you don't have that, despite Prism breaking in the news.

AND then we get to your point, which is that the records in question don't actually prove much of anything, even if they do exist.  OR, if they do, and they are produced, it's still not a slam dunk.

For instance, your cell phone was in bermuda, and you were recorded as talking on that phone from bermuda.  Great.  Now let me show you the app I used to do that while sitting here in Oregon from my computer.  The meta levels get messy real quick.
 
2013-06-13 04:20:32 PM  

Kahabut: Gyrfalcon: "That's what they want you to think!!!"

The idea that the NSA somehow has, in their treasure trove of "metadata", sekrit evidence that would "exonerate" someone or other, and they can be compelled to produce said evidence with only that as compulsion, proves your point--that people don't know how the legal system works. Including, apparently, the lawyer who asked for said evidence.

To prove innocence (or, for that matter, guilt), the attorney needs to show his client was presumably not at a location on a given date. Either you can show this, or you cannot. This concept that the NSA (or anyone) has some stash of phone records that would "prove" Mr. X was somewhere else despite the prosecution's claim that he was at the scene of the crime, and they are feloniously hiding this proof is just mind-boggling. Or, in the case of a financial crime, if the "proof" is that certain wire transfers did not take place, the NSA wouldn't be magically hiding that evidence that Mr. X's attorney couldn't get some other way.

But either way, what Mr. X needs is A DATE (or dates). Either there is proof of that date or transaction--which he has--or there isn't. More records before or after that date from the NSA isn't going to make him more innocent just because there are more of them. And if they say "No, we don't have any evidence that Mr. X called from the Bahamas, but we do have evidence he was in New York just like the prosecutor says," what does that prove? Can he still insist Well, they have the exonerating evidence in their vaults but they're refusing to release it? How paranoid do we let him get before we admit there just IS NO EVIDENCE?

Well, even before that point, you have to understand that in a court of law, "evidence" is the stuff you can show.  IE: papers, objects, video. You can also subpoena anything you want, even if it doesn't exist.  I have in the past filed subpoena's for things I KNEW didn't exist, just to see how and how long it would take for a respo ...



I swear, has anyone ever heard of 'beyond a reasonable doubt'?  Jebus.

Of course phone records may be inaccurate.  Or James Bond style villains will come up with some Tom-Clancy-I-read-to-much-on-the-internet uber trick or whatever.  But in a court, it absolutely is possible to bring in records that say 'oh no, I wasn't there, my phone records show I was 'here' to introduce doubt.
 
2013-06-13 04:28:40 PM  

Dr Dreidel: - so now the judge sides with the NSA that this info is secret. For the purposes of the trial, it doesn't exist.


which is not the same as lack of evidence which would exonerate or exculpate
lawyer would have grounds for appeal
which would get to scotus

your honors, the government has secret evidence which PROVES that my client is innocent and is withholding the evidence. scotus. he is free to go. or turn over the evidence.

such a fun world we live in
 
2013-06-13 04:29:45 PM  

nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.


This.

The only news here is that some people are farking morons, and that's not news.
 
2013-06-13 04:31:55 PM  

trippdogg: nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.

This.

The only news here is that some people are farking morons, and that's not news.


d3h9au4afozpag.cloudfront.net
 
2013-06-13 04:47:35 PM  

Jacob_Roberson: ladyfortuna: And here it is, your moment of zen

[img.gawkerassets.com image 259x194]


Which part? You might get a more clear idea what I meant if you look at the URL...
 
2013-06-13 05:40:44 PM  

Kahabut: The NSA has no interest, no reason, and no precedent of playing ball here. Meaning that if they even bother to respond, it's going to be a perfunctory "no records".

Legally, they are required to hand over those records. But Legally, you can't actually force them to do so without prior evidence of the records existence, and you don't have that, despite Prism breaking in the news.


You can play a longer game, though, by subpoenaing both the NSA phone records and calling a MetroPCS rep as a witness. If you have evidence that PCS turned over the records, you can question the witness. They can't plead the 5th -  it's not an illegal action. So they can either perjure themselves, or indicate that "yes, the NSA did receive the records." At which point it can be shown that the government has refused to turn over exculpatory evidence.
 
2013-06-13 05:56:58 PM  

ladyfortuna: You might get a more clear idea what I meant if you look at the URL...


That's what I thought, but he just seemed so serious. Also that guy confuses me in general: The name says chick, the beard says dude, the first name says chick, but the first name also says suicide bomber. The last name says French but the accent says American. The last name says cattle but the clothing says he's human. And the face says clone of Wil Wheaton.
 
2013-06-13 06:05:30 PM  

Random Anonymous Blackmail: skinink

"It might be a sincere attempt to clear his client, or it might be the single most audacious delaying tactic a lawyer has ever employed. "


Even it's a delaying tactic, they lawyer is supposed to do what's best for his client. At least he's trying something and especially if the defendant is innocent as he claims.

I think if even if your client is guilty as hell I think you can be disbarred for not representing your client fairly.


Yep.  Duty of 'zealous advocacy' in most states, afaik.
 
2013-06-13 06:06:17 PM  

mcreadyblue: skinink: "It might be a sincere attempt to clear his client, or it might be the single most audacious delaying tactic a lawyer has ever employed. "
Even it's a delaying tactic, they lawyer is supposed to do what's best for his client. At least he's trying something and especially if the defendant is innocent as he claims.

Just wait until the divorce attorneys get in on the act.


Yep.   They were REALLY quick back when FastPass and the like first came out.
 
2013-06-13 06:07:09 PM  

This text is now purple: Kahabut: The NSA has no interest, no reason, and no precedent of playing ball here. Meaning that if they even bother to respond, it's going to be a perfunctory "no records".

Legally, they are required to hand over those records. But Legally, you can't actually force them to do so without prior evidence of the records existence, and you don't have that, despite Prism breaking in the news.

You can play a longer game, though, by subpoenaing both the NSA phone records and calling a MetroPCS rep as a witness. If you have evidence that PCS turned over the records, you can question the witness. They can't plead the 5th -  it's not an illegal action. So they can either perjure themselves, or indicate that "yes, the NSA did receive the records." At which point it can be shown that the government has refused to turn over exculpatory evidence.


Yes, and no.  First off, the NSA doesn't get it's records from the phone company in the way you suggest.  It's an automated system and you'll have a hard time calling it as a witness.

Second, WHICH records?  The ones that show where and when the phone was used, or the recordings of the phone calls?  Because those are two entirely different record sets, and essentially neither of them is a slam dunk unless you already know what is in them, and we don't.  HOWEVER, just knowing the records existed AT ONE POINT is not reasonable doubt if the records can't be produced.

Hypothetically, if an employee handed over records, and if that employee will tesitfy to that fact.  Then you've got cause, not for reasonable doubt, but for a lawsuit against the NSA for failure to provide records under subpoena.  Meanwhile you put the criminal trial on hold while you pursue the NSA.

That's how it actually works.  You are welcome to your dreamscape where just the idea that the NSA might have some records is reasonable doubt.  It's not, but you are welcome to continue to think so.
 
2013-06-13 06:16:40 PM  

sewnandsilent: I_C_Weener: NSA - No.

Defense lawyer - Fine.  Judge, we have been denied potentially exculpatory evidence, move to dismiss the case.

Judge - Well...damn Constitution.

SO MUCH VERY THIS!!!


Personally, I think its less about whether the NSA turn over the records or not.  It only takes one judge to make an acquittal on this basis, and the appeals court will overflow.  Anyone convicted of just about anything in the last 7 years may potentially have grounds for an appeal.
 
2013-06-13 06:17:50 PM  
Welcome to digital DNA retrials.
 
2013-06-13 06:19:54 PM  

trippdogg: nmrsnr: Um, what records does the NSA have that were not previously available through your phone company? Since the phone company gave the NSA the records in the first place, I don't see what new evidence this could possibly bring to light.

This.

The only news here is that some people are farking morons, and that's not news.


Unless the NSA keeps the records longer than the phone company in question.

And, since the REST of the government NEVER throws anything away, it's not unreasonable.
 
2013-06-13 06:25:51 PM  

This text is now purple: This text is now purple: Did you not read the rest of what I posted? Literaly the next Goddamn sentance? Where I said all it proves is that your cellphone, not you was near the tower

It's on the prosecution to prove it wasn't you on the phone.

Ironically, the NSA might know that, too.

I actually have two cell phones. Every now and again, I call one phone from the other. Occasionally, while the phones are in different cities. I wonder what the NSA makes of that.


We're a little concerned that you're talking to yourself, and think you might want to see a mental health professional.

Oh, and your keys are under the sofa cushions, along with a missing sock.  One of the argyle ones your aunt gave you.  You should call HER more often.  Instead of yourself.

/have we said too much?
 
2013-06-13 07:53:45 PM  
everybody stop and read this easy to read article from 2001:
http://www.sfweekly.com/2001-12-19/news/the-spybots-among-us/
which covers better than anything the capabilities and intentions of the NSA's program.
 
2013-06-13 08:21:40 PM  
Kahabut, IANAL so I bow to you here.  However, my layman's opinion from many years of watchin' TV lawyerin' (LOL) is to wonder, isn't this going to be grounds for appeal?  I doubt the judge will throw out the trial, but wouldn't SOME form of this eventually reach the Supremes, if not this case, then some other?

I can then think the Supremes might MIGHT say, turn it over or let 'em walk.  Scalia even might side this way, based on his recent privacy argument about DNA.

Oh, and I read Gideon's Trumpet a couple years ago, is that enough to get my Law GED?  :D
 
2013-06-13 10:50:09 PM  

Jacob_Roberson: ladyfortuna: You might get a more clear idea what I meant if you look at the URL...

That's what I thought, but he just seemed so serious. Also that guy confuses me in general: The name says chick, the beard says dude, the first name says chick, but the first name also says suicide bomber. The last name says French but the accent says American. The last name says cattle but the clothing says he's human. And the face says clone of Wil Wheaton.


I really can't speculate on all that, but this might help...
 
2013-06-14 11:43:27 AM  

johnnieconnie: ...and the NSA will just stamp a big NO! on the request and that will be that.


Except that the government has to either let the ppl out of prison or hand the records over. Either way it will make for great entertainment.
 
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