[5673] in cryptography@c2.net mail archive
Re: Why did White House change its mind on crypto?
daemon@ATHENA.MIT.EDU (Matt Blaze)
Sat Sep 18 20:08:33 1999
Message-Id: <199909181944.PAA26501@tpc.crypto.com>
To: "Lucky Green" <shamrock@cypherpunks.to>
Cc: "P.J. Ponder" <ponder@freenet.tlh.fl.us>,
"Greg Broiles" <gbroiles@netbox.com>, cryptography@c2.net
In-reply-to: Your message of "Fri, 17 Sep 1999 23:44:17 PDT."
<NDBBIFGOKODBCKDGJDKLMEBMCHAA.shamrock@cypherpunks.to>
Mime-Version: 1.0
Content-Type: text/plain; charset=us-ascii
Date: Sat, 18 Sep 1999 15:44:22 -0400
From: Matt Blaze <mab@crypto.com>
> Your argument is straight to the point. Since you are unfamiliar with the
> operations of the current FISA court, you obviously can't be blamed for not
> being aware of the fact that there is an US court in operation today that
> conducts its proceedings quite differently from the way proceedings were
> conducted back when you were in law school.
>
> Under existing FISA court rules, the defense is not afforded the opportunity
> to cross examine prosecution witnesses about evidence presented by the
> prosecution deemed sensitive for national security reasons.
>
> The current CESA proposal simply is an attempt to extend this
> well-established practice to other courts of law.
>
> I am afraid that "things" have changed vastly more in the last 20 years than
> you may be aware of.
>
> Just a hunch,
> --Lucky
>
There is a very important distinction, however. The FISA court does not
have the power to convict people of crimes (or issue civil judgements),
only to issue FISA orders. Even evidence obtained under FISA
can be discovered and examined if it is to be used in a criminal or civil
proceeding.
I think it is possible to argue that even if the FISA rules are considered
constitutional, any law or rule that extends a "national security" exemption
from the right for the defense to examine or question relevent evidence used
against in a crimial trial clearly violates procedural due process. Of course,
I'm not a lawyer, and I'm often surprised about what the courts are willing
to allow these days.
-matt
