NSA now meddling with lawyers

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The right of clients and attorneys to speak feely is under siege

In the months since Edward Snowden revealed the nature and extent of the spying that the National Security Agency (NSA) has been perpetrating upon Americans and foreigners, some of the NSA’s most troublesome behavior has not been a part of the public debate.

This behavior constitutes the government’s assaults on the American legal system. Those assaults have been conducted thus far on two fronts, one of which is aimed at lawyers who represent foreign entities here in America, and the other is aimed at lawyers who represent criminal defendants against whom evidence has been obtained unlawfully and presented in court untruthfully.

Investigative reporters at The New York Times recently discovered that the NSA has been listening to the telephone conversations between lawyers at a highly regarded Chicago law firm and their clients in Indonesia. The firm, Mayer Brown, has remained publicly silent about the revelations, as has its client, the government of Indonesia. However, it is well known that Mayer Brown represents the government of Indonesia concerning trade regulations that govern exports of cigarettes and shrimp to the United States. The lawyers on the other side of the bargaining table from Mayer Brown work for the federal government, which also employs, of course, the NSA.

Can the NSA lawfully tell lawyers for the government who are negotiating with Mayer Brown lawyers what it overheard between the Mayer Brown lawyers and their client? The answer, incredibly, is yes. Federal rules prohibit the NSA from sharing knowledge with lawyers for the federal government only about persons who have been indicted. In this case, Mayer Brown is attempting to negotiate favorable trade relations between Indonesia and the United States, and the lawyers for the U.S. have the unfair advantage of knowing in advance the needs, negotiating positions and strategy of their adversaries. In the Obama years, this is how the feds work: secretly, unfairly and in utter derogation of the attorney-client privilege.

For 100 years, that privilege — the right of lawyers and their clients to speak freely and without the knowledge of the government or their adversaries — has been respected in this nation, until now. Now, we have a lawyer who, as president, uses the NSA to give him advance warning of what his office visitors are about to ask him. Now we have lawyers for the federal government who work for the president and can know of their adversaries’ most intimate client communications.

Illustration by Alexander Hunter /The Washington Times more >
This is profoundly unfair, as it gives one side a microscope on the plans of the other. It is unwise, too, as clients will be reluctant to open up to counsel when they know that the NSA could spill the beans to the other side. In the adversarial context, for the system to work fairly and effectively, it is vital that clients be free to speak with their lawyers without the slightest fear of government intrusion, particularly when the government is on the other side of the deal or the case.

If you have spoken to a lawyer recently and if that lawyer is dealing with the federal government on your behalf, you can thank the constitutional scholar in the Oval Office for destroying the formerly privileged nature of your conversations.

That is not the only legal protection that President Obama has destroyed, though. In 2012, the U.S. Supreme Court heard oral argument in a case in which journalists in the pre-Snowden era challenged the government’s spying on them. The government won the case largely because it persuaded the court that the journalists did not have standing to bring the lawsuit because, the court ruled, their fears of being spied upon were only hypothetical: They suspected that their communications with their sources were being monitored, but they couldn’t prove it. In this post-Snowden era, we now know that the journalists in that case were being spied upon.
Nevertheless, during the oral argument in that case, government lawyers told the high court that should government prosecutors acquire from the NSA evidence of criminal behavior against anyone whom they eventually would prosecute and should they wish to use that evidence in the prosecution, the Justice Department would inform defense counsel of the true source of the evidence so that the defendant would have the ability to challenge the evidence.

Yet last week, in a case in federal court in Oregon, the same Justice Department that told the highest court in the land last year that it would dutifully and truthfully reveal its sources of evidence — as case law requires and even when the source is an NSA wiretap — told a federal district court judge that it had no need or intention of doing so. If this practice is permitted of using NSA wiretaps as the original source of evidence in criminal cases and keeping that information from the defendants against whom it is used, we will have yet another loss of liberty.

Federal law requires that criminal prosecutions be commenced after articulable suspicion about the crime and the defendant. Prosecutions cannot be commenced by roving through intelligence data obtained through extra-constitutional means. That is the moral equivalent of throwing a dart at a dart board that contains the names of potential defendants and prosecuting the person whose name the dart hits.

For the past 75 years, federal prosecutors have not been permitted to use unlawfully obtained evidence in criminal cases, and they have been required to state truthfully the sources of their evidence so that its lawfulness can be tested. This rule generally has served to keep law enforcement from breaking the laws it has sworn to uphold by denying to its agents the fruits of their own unlawful activity.

Liberty is rarely lost overnight. It is lost slowly and in the name of safety. In the name of keeping us safe, the feds have spied on the lawyers who negotiate with them, lied to the lawyers whose clients they are prosecuting, and misrepresented their behavior to the Supreme Court. As far as the public record reveals, they have not corrected that misrepresentation. They have done all of this in utter defiance of well-settled law, procedures and constitutional safeguards.

What will they do next?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is an analyst for the Fox News Channel. He has written seven books on the U.S. Constitution

Original Article: http://p.washingtontimes.com/news/2014/feb/26/napolitano-new-uses-for-nsa-abuses/#ixzz2uYLUQ6sv
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Supreme Court Rejects Challenge to Pre-Trial Asset Freeze

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The US Supreme Court ruled 6-3 Tuesday in Kaley v. United States that a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s finding of probable cause underlying a pre-trial seizure of assets. The US Court of Appeals for the Eleventh Circuit ruled against [opinion] the availability of such hearings because “defendants are not entitled to try the entire case twice,” before the trial and then again in front of a judge and jury. The Supreme Court was asked to consider whether the Fifth and Sixth Amendments [text] give a defendant the right to challenge the evidentiary support of the underlying charges in a pre-trial adversarial hearing when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice. Relying on precedent, the Court found that the freeze placed on the Kaleys’ money is valid because “a defendant has no Sixth Amendment right to spend another person’s money for legal fees.” “The grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime,” Justice Elena Kagan wrote, affirming the Eleventh Circuit’s ruling for the majority.

If the question in a pre-trial forfeiture case is whether there is probable cause to think the defendant committed the crime alleged, then the answer is: whatever the grand jury decides. … Congress of course may strike its own balance and give defendants like the Kaleys the kind of hearing they want. … But the Due Process Clause, even when combined with the defendant’s Sixth Amendment interests, does not command those results.

Chief Justice Roberts, joined by Justices Breyer and Sotomayor, dissented: “few things could do more to ‘undermine the criminal justice system’s integrity’ than to allow the Government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice—without even an opportunity to be heard.”

In my opinion, this was a bad decision & opinion of the most high court. We as citizens must be allowed, by right, to challenge everything for which we have not been found guilty of by a jury of our peers! A grand jury simply hear the “evidence” in the possession of the prosecutor’s office and is not rebutted by evidence in the possession of the defense. This is a very one sided decision, which guts the rights of Americans and bolsters the money grabbing capacity of law enforcement by theft.

http://www.scotusblog.com/case-files/cases/kaley-v-united-states/

Cops Assault Man for Filming, Tell Him He has no Freedom of Speech

Although the Supreme Court has continued to uphold the right to film police, First Amendment violations seem to be on the increase as cameras become more commonplace.

Knowing your rights is not enough, you need to be prepared to do legal battle!

Read more at http://thefreethoughtproject.com/cops-assault-man-filming-freedom-speech/#3CDbM5skIdE3ILCT.99

‘I Know My Rights’

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As the U.S. Supreme Court stated in Near v. Minnesota, “In determining the extent of the constitutional protection [of the press], it has generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints.” Thus, federal courts that have considered the issue have held that citizens have a constitutional right to film officers who are performing their duties in public places, subject to reasonable time, place, and manner restrictions.

Near v. Minnesota – 283 U.S. 697 (1931)

‘I Know My Rights’: Woman Jailed After Filming Traffic Stop

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Students Block Westboro Baptist Church Protest

Students Block Westboro Baptist Church’s Michael Sam Protest With Wall Of Love

Original article: http://www.huffingtonpost.com/2014/02/16/westboro-baptist-church-michael-sam_n_4798837.html?ncid=fcbklnkushpmg00000013&ir=Politics

While I personally disagree with the lifestyle choice and believe it to be abhorrent to the tenets of the bible…a gay person’s choices in life are between them and God! Those of us who believe in the tenets of the bible and remember history (specifically the Crusades & The Inquisitions) – you cannot force someone to believe in the tenets of God and expect them to remain a believer. Even Jesus swayed sinners with love & compassion.

Our society will only deteriorate as the fundamentalists get worse and those on the other side will fight with a fury…this spells disaster to the conservative religious & spiritual groups. Westboro Church being one of the more in-your-face group as of lately is no better than the initiators of either the Crusades or the Inquisition. No love and no compassion and, in my opinion, no real connection to God.

Video Taping Government Officials is an Ancillary to First Amendment

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Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) Opinion of the court:

Judge Kermit Lipez delivered the opinion of the court. The court noted the principle of qualified immunity balanced the need to hold public officials accountable with the need to shield such officials from harassment on account of their public duties. The court therefore applied a two-prong test, first, did the facts alleged by the plaintiff show a violation of a constitutional right, and second, was the right clearly established at the time of the violation.

The court first addressed the question of whether Glik’s First Amendment rights had been violated. It noted that “we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties” and held that Glik had a constitutional right to videotape a public official in a public place. The court noted that this right was not limited to reporters and journalists, but a right of all citizens, subject to reasonable limitations of time, place and manner. It was clear in the current case that none of those limitations applied.

Second, the court looked at whether the right to videotape was clearly established at the time of the arrest. The court had “no trouble concluding that ‘the state of the law at the time of the alleged violation gave the defendant[s] fair warning that [their] particular conduct was unconstitutional.'” (brackets in original) The court noted that some constitution violations are “self-evident” and the right to film public officials in a public place was clearly established a decade prior to Glik’s arrest.
Next, the court determined if Glik’s Fourth Amendment rights had been violated. The court noted that an arrest must be based upon probable cause. Noting that Glik claimed that no probable cause existed and that the officers stated that probable cause existed that the wiretap statute was violated. The court looked to the Massachusetts Supreme Judicial Court for the determination of state law. The Massachusetts court required that the recording be made secretly to be a violation, and that when a camera was in plain sight a recording could not be held to be made secretly. In Glik’s case, the criminal complaint stated that “openly record[ed] the police officers”, (brackets in original) was not made in secret, and that therefore the officers had no probable cause to arrest Glik. Since there was no probable cause, Glik’s Fourth Amendment rights were violated.

http://caselaw.findlaw.com/us-1st-circuit/1578557.html

Finally, the court determined that the absence of probable cause as a constitutional violation was clearly established in law. The court therefore held that the district court’s denial of the officers of qualified immunity was proper, affirming the decision.

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Flashing Headlights to Warn of Speed Traps Is Protected Speech

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FRI FEB 07, 2014 AT 11:15 AM PST
Flashing Headlights to Warn of Speed Traps Is Protected Speech
byGrafZeppelin127Follow

Hey flashers, you are now protected under the First Amendment right to free speech to give the universal sign to fellow drivers that cops are nearby running radar.

Hailed as a “victory for drivers,” U.S. District Court Judge Henry Autrey in St. Louis, Mo. ruled Monday that flashing one’s headlights to warn others about speed traps was free speech.

http://www.dailykos.com/story/2014/02/07/1275857/-Flashing-Headlights-to-Warn-of-Speed-Traps-Is-Protected-Speech#