July 15, 2005
Common Sense Versus The Law?
Some Observations On The Mayfield Lawsuit
We'll take a few late-night stabs at getting into some of the issues raised during Friday's hearing on the Brandon Mayfield lawsuit.
One of the central demands of Mayfield and his attorneys is that the Federal government fully identify -- and return -- all material obtained regarding Mayfield through searches, seizures, and wiretaps, and destroy any copies of that material, or information gathered, that the government may have made.
Attorneys for the government counter that it is necessary for them to retain such materials in the event they are required for them to defend themselves against the Mayfield lawsuit, any internal administrative review of the incident, and/or any potential Congressional inquiry.
Plaintiffs assert that this, amongst other things, presents an ongoing violation of Mayfield's privacy, and raise the specter of potential future abuses of that collected and maintained information and material. They also argue that any case arising from the Mayfield incident would bring with it the right for the government to engage in the process of discovery, and that should the government return all materials and destroy all copies, they would still have the right to re-obtain relevant materials through that discovery process.
Defendants respond that the potential ongoing privacy violations are addressed by the FBI (and the other agencies with whom the material or information was shared, of which the plaintiffs claim there were seven, including the CIA) moving to sequester that material and prohibit access to it accept as might be needed in a defense against the above-mentioned legal, administrative, or Congressional processes. Further, they say that in order for a court to grant prospective relief for some future harm (as opposed to retrospective relief for harm already caused), there needs to be a real and imminent risk or irreparable harm, and not merely the possible future potential for some unspecified harm.
Mayfield's attorneys counter that merely having the Federal government certify that the materials and information has been sequestered is not enough, and demand a court-supervised process of returning that information, along with the normal court-supervised process of discovery should the government need to regain access to any of it for the purposes of defending itself.
All of which is a much-boiled-down briefing on that one particular issue, which of course was one of many addressed over the course of the day. But we're going to take bits and pieces more or less one at a time here.
It does bring us back to our headline, however. We haven't an inkling how the court will rule on this particular aspect as a matter of law. But what seems possible to us, anyway, is that we might end up with a situation in which the law and common sense don't match.
For us, it seems utterly contrary to common sense to say that the government can maintain possession of material and information (gathered as a result of a fingerprint error and an arguably prejudicial affidavit) on the basis that it may need to access that information in order to defend itself in court, in administrative review, or before Congress.
As the plaintiffs pointed out, such processes normally come with either a discovery process (as in a court case) or subpoena powers (as in a Congressional inquiry). Especially in the case of the former, there in theory is at least some sort of court oversight as to whether or not the material requested in the discovery process actually has any bearing on the case at hand.
If the Federal government simply can maintain all of Mayfield's material and gathered information on its own, it can simply cull through it all willy-nilly and at-will to find anything it wants, regardless of whether or not an impartial force, such as a judge, would consider it relevant for them to have.
In the dueling case citations over the course of this argument, it's entirely impossible for this laymen to know what the law ultimately has to say on that count.
But we don't believe it strains the mind too much to notice what common sense would have to say about it.
Comments (4)
Bill McDonald on 16 Jul 2005
I’m having trouble sleeping as I’m 500 pages into Michael Ruppert’s book, “Crossing the Rubicon”, and it just covered the implications of the Patriot Act. To read your account of the Mayfield case on the same night is truly chilling. Sort of like a classroom-field trip situation. The right wing pundits say to give the government these added powers and trust they will not be abused. I liked it better when we had more rights and the government didn’t have these powers to abuse in the first place. That was America and it was easier to get to sleep at night.
jim karlock on 16 Jul 2005
Someone needs to ask the Repubs how they would feel about the patriot act with Hillary as Prez.
The Ds should be worring about Bush, but aren't. They need to remember Nixon.
Thanks
JK
Sid on 17 Jul 2005
Thanks for spending the day at the trial and writing about it. Since the DOJ has put so much pressure on the media during this case, the reporters aren't able to tell the full story in their reports. Their paranoid editors won't let them. The only way we can get it now is through blogs like yours.
Thanks.
Jack Peek on 23 Jul 2005
To His honor the mayor, and of course Randy Leonard:
Twice now, the city of London has been hit with terror acts, twice we have received emails from two friends of ours who live there, who twice missed getting killed, by living in the city, and riding the mass transportation of that city.
She is married to a Kuwaiti man (a Muslim), who hid her, and her two kids in the back of a truck when Saddam attacked there, and then he, stayed behind and fought in the local resistance, before we kicked Saddam out..they both are sick of what is happening, an are proud of the spirit of the city and the government for the actions taken since they were hit. Wish that were true here.
Is it really going to take such a deal here to get people who may get their doors knocked on, or kicked down, if the reason for it is there. We can say we are sorry if we are wrong...That's the progressive way...Right?
No....We honor, without question, anyone illegal or not, and provide guarantee's of the Constitution....EVEN IF THE DOCUMENT SAY'S THEY MUST BE BORN HERE.
There is solid evidence there is a tie between Muslims responsible for the London bombing killing 50 plus people, the Bly,Oregon, intent to locate a training camp for real honest to goodness folks, intent on KILLING people.
There will be no reconition of this of course, they will be know "critical thinking" too the logical conclusion that this was not a good deal for the economy of the city of Bly.
I guess we need for solid evidence after(there's that word again) after 50 people are killed here or 500 people are killed somewhere else, and that mission of death was tracked towards Oregon, and most likely Portland, Oregon
Until then Mr.Mayor,continue playing politics, and Randy, just find something more to oppose as far as common sense would dictate you stay out of it.
The issue in London for officals there is not the civil liberties of those using that shield to commit acts of terror, but to stop them by ANY means before they do more harm.
By those actions of protection...you save lives in a war unlike no other.
Our president who I feel has failed us on the border issue told us what this war was going to look like and he was dead on!
Our elected officals just made it easier to make it happen here.
The irony of that scares the hell out of me, protection for those intent on killing us...a slap, and a kick at the groin, for those that hunt these SOBS DOWN.
If the record shows that some act of terror was planned, located, acted on and came for this state and or located in this city..Please Mr. Mayor, and of Mr. Leonard.....just empty out your office, turn in the keys to them and ride off in some direction other then here.