Federal Judge Paraphrases Mike Rogers; Tells Muslims Their Rights Can't Be Violated If They Don't Know They're Being Violated

from the and-not-even-AFTER-that-either,-apparently dept

The federal judge handling the lawsuit seeking an injunction against the NYPD's pervasive surveillance of Muslims appears to have taken a page from Rep. Mike Rogers' book. Judge William Martini has dismissed the case, stating that the only reason the plaintiffs claimed their rights were being violated is because someone told them their rights were being violated.

Marcy Wheeler at emptywheel sums it up:

The core of his logic is that Adam Goldman and Matt Apuzzo have injured NYC’s Muslim community by providing them proof of the spying targeted at them.
From the ruling itself:
None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential NYPD documents and articles expressing its own interpretation of those documents. Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press. This confirms that Plaintiffs’ alleged injuries flow from the Associated Press’s unauthorized disclosure of the documents. The harms are not “fairly traceable” to any act of surveillance.
Your rights aren't violated until you know they've been violated. And even then, knowing they've been violated apparently doesn't give you standing to pursue this claim, at least not according to Judge Martini.

Martini takes time to lay into the acts of journalism that led to this suit being filed, pointing out that the AP's reporters "covertly" obtained access to NYPD documents, before (shock!) publishing them (without authorization) along with their "interpretation" of the confidential papers. If these two reporters would have minded their own business, no one would have known their rights were being violated and Judge Martini wouldn't have been inconvenienced by having to consider the plaintiffs' claims.

Martini's reasoning is just as flawed as Rogers', but he does Rogers one better by detailing the sort of pervasive surveillance he finds to be perfectly non-rights-violating. Back to Wheeler:
Martini said all this spying was cool because it was designed to find Muslim terrorists hiding among Muslims...

As I emphasized here, when it was first reported, NYPD wasn’t hunting for Muslim terrorists in places where the 9/11 terrorists were known to hang out — cheap hotels, gyms, cybercafes, and a bunch of other businesses catering to anonymity rather than Muslims. Rather, the NYPD was hunting terrorists in schools in Newark, including the one above teaching girls in fifth to twelfth grade, and another teaching first through fourth graders.
The NYPD was hunting terrorists in a girls school.
The plaintiffs' expressed concerns that past surveillance efforts could negatively affect their futures are waved away for being speculative rather than "provable." This is more the law in general rather than Martini's interpretation, but up until the AP exposed the documents, the NYPD's surveillance programs were also more speculative than provable. And given recent history, how much "speculation" is actually being deployed here?
Plaintiffs Syed Hassan, Soofia Tahir, and Zaimah Abdur-Rahim fear that being the subjects of surveillance will interfere with their careers. Hassan is a U.S. Soldier and Tahir is expecting to begin a career in international social work. Both plaintiffs allege that career advancement will require background checks and security clearances. Both allege that their affiliations with organizations falsely labeled as “threats” will hinder their career advancement.
Who knows what sort of flags the NYPD's surveillance will raise on background checks, or whether anything noted by the department is actually merited? The NYPD's informants have been known to inflate claims and flat out make stuff up just to meet the expectations of the Demographics Unit. Simply putting their names into the system could create problems for the claimants. Just ask Dr. Ibrahim, who spent a decade on the TSA's "no fly" list because of an FBI agent's clerical error.

But take away all the other questionable parts of Martini's decision and we're still left with this: a federal judge telling plaintiffs their rights weren't violated until the program was exposed, and even then, actually weren't violated.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Feb 24th, 2014 @ 3:17am

    Makes sense, if a man drugs a girl into oblivion and rapes her she was actually not violated since she didn't know the man raped her! Ok everybody, free rape pass! We can go further! Maddoff hasn't violated any laws or stolen any money because nobody knew what he was doing so he's all clear!

    One has to question how this moron got to be a judge. Either you have your rights violated or not.

     

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  2.  
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    justok (profile), Feb 24th, 2014 @ 3:35am

    And

    And the Judge wasn't wrong until he opened his mouth.

     

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  3.  
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    Kaemaril (profile), Feb 24th, 2014 @ 3:52am

    I'm looking forward to the appeal on this one. It ought to be scathing.

     

    reply to this | link to this | view in thread ]

  4.  
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    Ole Juul (profile), Feb 24th, 2014 @ 3:58am

    Re:

    In fact this ruling could backfire bigtime. Has this judge exceeded his best before date or did he just get the job because no one else applied?

     

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  5.  
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    Anonymous Coward, Feb 24th, 2014 @ 4:04am

    Double Standards

    So you can violate a secret law that you don't know about and be held responsible and punished accordingly, but your rights can't be violated in secret and you can't hold the violator responsible or have them punished because you didn't know about it...
    'murica

     

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  6.  
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    Anonymous Coward, Feb 24th, 2014 @ 4:16am

    If they bombed brownie they wouldn't have to deal with this in court.

     

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  7.  
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    Anonymous Coward, Feb 24th, 2014 @ 4:24am

    I could make a cocktail joke about this ruling, but that would be inappropriate... like this ruling is.

     

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  8.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 4:50am

    Re:

    If a moron becomes a judge he is not a moron if he did not know he was a moron even after he is told he's a moron.

     

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  9.  
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    Jim (profile), Feb 24th, 2014 @ 5:02am

    Very bad case law!

    Lets change the details a little to see why.

    Someone steals your car, and you dont notice it. Then when your neighbor tells you about it, and shows you proof of someone breaking into it on their phone, it hasn't been stolen. You never suffered any harm, you didnt notice it was gone, someone else did.

     

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  10.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 5:08am

    Voyeurism FTW!

    If you don't know they are there, then you can not be harmed.
    I don't see how this ruling will cause any problems. /sarc

     

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  11.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 5:18am

    Re:

    Not to mention that it's your neighbor's fault for showing you the proof

     

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  12.  
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    Just an observation, Feb 24th, 2014 @ 5:36am

    And now...

    Ignorance of the Law *is* an excuse.

     

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  13.  
    identicon
    Peter, Feb 24th, 2014 @ 5:41am

    There is no murder ...

    ... if the victim didn't notice it was killed before it was dead.

     

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  14.  
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    Chronno S. Trigger (profile), Feb 24th, 2014 @ 5:57am

    Let me paraphrase

    Muslims have been spied on by NYPD. No harm was done before that spying was reviled and no harm was really done after the revile ether. Judge William Martini thinks that violating our natural rights isn't harm.

    Everybody out of the boat, it's going down.

     

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  15.  
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    Greevar (profile), Feb 24th, 2014 @ 6:36am

    So the plaintiff can't take the NYPD to court because they weren't aware of the covert surveillance until someone told them about it with unauthorized publication? Also, the NYPD can violate any rights they wish, so long as the victim is not aware of it.

    No, the NYPD does not have the power to participate in illegal surveillance just because the people being surveyed are unaware of their rights being violated. Police surveillance is, by its nature, covert. How is anyone supposed to fulfill the supposed 3 requirements the judge cited in order to effectively challenge these violations if the violations are being deliberately obscured from their awareness? So if I'm not aware that the police searched my home without a warrant or probable cause, I can't challenge their actions? What about my right to due process?

    Whether or not someone was aware of their rights being violated cannot be a factor in challenging rights violations. The government agency must be held accountable for violations of protected rights regardless of victims' awareness. The whole point is to prevent and discourage violations of civil rights. What good is the 4th amendment if the NYPD can ignore it if they're doing it in secret? If the NYPD assassinates someone and no one is aware of it, is it legal? No, if a person murders another and nobody knows about it, our system of law says they still committed murder. A crime is a crime whether the victim is aware of it or not. "Injury in fact" is a bullshit excuse.

     

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  16.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 7:02am

    So if an artist doesn't know I'm downloading or torrenting one of their songs, I can't be touched for copyright infringement?

     

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  17.  
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    Anonymous Coward, Feb 24th, 2014 @ 7:11am

    Sounds to me like this judge just invited everyone to find out how he is being blackmailed into spouting the intel communities lies.

     

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  18.  
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    art guerrilla (profile), Feb 24th, 2014 @ 7:18am

    Re: Double Standards

    HA!
    you nailed it, thanks...

     

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  19.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 7:18am

    The key to immorality is ignorance then!

    So, according to this logic, they key to immorality is being a completely ignorant moron, and drugs to.

    If you don't know that you were killed, then you aren't dead! If you're too smart though, and will realize that you're dead or dying, the answer is using drugs to make your stupider and numb your body so much that you won't be aware of someone kicking you in the groin, let alone being killed!

     

    reply to this | link to this | view in thread ]

  20.  
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    art guerrilla (profile), Feb 24th, 2014 @ 7:23am

    Re:

    i will point out as i have a number of times: nanobots are HERE, NOW...
    (yes, they are 'proof of concept' type lab gizmos, but it ain't too far off... who knows what the NSA has up their sleeve, or our butts...)

    so-o-o-o, by this 'judges' 'logic', when we have nanobots crawling up our ass, inserting themselves in our neurons, and otherwise spying on us down to the cellular level, it will be -like- totally double-plus good, 'cause they are -like- totally unobtrusive and shit...

    fucking moron...
    i have a special necktie for you and your kind...

     

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  21.  
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    art guerrilla (profile), Feb 24th, 2014 @ 7:24am

    Re:

    uh oh, hoisted on their own petard ! ! !

    "sauce for the goose, sauce for the gander", FOR THE WIN !

    excellent point, thank you...

     

    reply to this | link to this | view in thread ]

  22.  
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    crade (profile), Feb 24th, 2014 @ 7:29am

    How Kafkaesque

     

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  23.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 7:50am

    This sounds like the judge is going to get berated on appeal.

     

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  24.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 7:53am

    All we need to do is slip this guy an amnesiac and then tell him he has no rights. If he doesn't know he has rights, we can't violate them, so we can beat him up for making this stupid ruling and it's perfectly legal!

     

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  25.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 7:54am

    So, I can't press charges to a guy whose shot me because I have no knowledge that he was actually going to shoot me????

    hmmmm..... there goes anarchy.

     

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  26.  
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    Nick (profile), Feb 24th, 2014 @ 8:01am

    But officer, you can't arrest me for being up a tree and watching my neighbor's wife undress! They don't know I'm up here, so I'm not violating their privacy!

     

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  27.  
    identicon
    Pixelation, Feb 24th, 2014 @ 8:04am

    Begs the question

    Does an illegal secret search become legal after an unauthorized release?

    I need a Martini...on second thought...

     

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  28.  
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    That One Guy (profile), Feb 24th, 2014 @ 8:16am

    And yet again...

    We've got someone who should know better pulling out the Peeping Tom defense to try and wave away illegal and/or unconstitutional actions.

    'No of course putting cameras in the womens' showers wasn't illegal or a violation of their rights or privacy, after all, they didn't know about the cameras.' /s

    The fact that it's a freakin' Federal Judge making this argument, instead of just some moronic politician, is flat out disgusting, it's pretty obvious he's yet another 'Any means are justified if the claimed goal is 'important' enough'.

     

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  29.  
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    Bengie, Feb 24th, 2014 @ 8:27am

    in other news

    In other news, your right to life is not violated if you didn't know it was being violated.

     

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  30.  
    identicon
    Jerrymiah, Feb 24th, 2014 @ 8:55am

    Judge Martini

    He's probably had too many martinis before proceeding with this case.

     

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  31.  
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    DannyB (profile), Feb 24th, 2014 @ 9:19am

    Can this help with Police Brutality?

    Hey, if the police beat you up, tazed you for fun, had doctors rape you multiple times, but you were unconscious during these assults, then were you really assulted?

    How can you be assaulted if you did not know you were being assaulted?

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    John Fenderson (profile), Feb 24th, 2014 @ 9:30am

    Re:

    Roofies FTW!

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 10:10am

    i sincerely hope there will be an appeal and that 'judge' Martini is severely reprimanded! it's rulings like this that make a mockery of the Constitution and the 'surveillance state'!!

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 10:38am

    Wow, this man got both a law degree and an appointment to the federal bench, all I ever got from a box of Cracker Jacks was a silly toy top.

    Based on his ruling, Rohypnol has a new add campaign.

    "Are you tired of all the legal hassles of dealing with the courts after you have abducted and raped a women? Well now your troubles are all over. Rohypnol, you date won't ever remember being abducted and raped, and if she can't remember, then it didn't happen, and you have not just my word on it, but federal Judge William Martini, word, and ruling on it as well. So remember, the next time you are going to rape someone, if you don't plan on killing them, Rohypnol"

    the drug to use when you don't want to violate the rights of the women you are raping.

     

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  35.  
    identicon
    Zonker, Feb 24th, 2014 @ 12:10pm

    So to sum up, according to Martini's ruling:

    Watching you shower is not violating your privacy, but the guy who pointed out the camera is guilty.

    Searching your medical history to find reasons to deny you employment/healthcare is not a HIPAA violation, but the doctor who told you they were searched is guilty.

    Accepting bribe money from lobbyists is not corruption, but the reporter who exposed the money trail is guilty.

    Breaking into your home and abducting you in your sleep, inserting an anal probe in you, then returning you to your bed all while your unconscious is not an abduction or invasive monitoring, but anyone helping you to discover the truth of what happened that night is guilty.

    The mayor of NYC building a private army under the NYPD and colluding with the judiciary to keep the largest city in the nation by population under his direct control is not a massive power grab in violation of the rights of its citizens, but the NYCLU attempting to expose and disempower him is guilty.

    ---

    Anyone not see this as a tool for criminals to avoid responsibility for their crimes while pinning the blame on others?

     

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  36.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 1:39pm

    Re: And now...

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 2:26pm

    I wonder what clause of the secret constitution authorises this...

     

    reply to this | link to this | view in thread ]

  38.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 2:33pm

    Does this make Snowden a free man?

    Extend this logic to Snowden and the NSA documents: Since the NSA did not know Snowden took any documents until the journalists published some of them with their own interpretations, the US government has no standing against Snowden. Come on home young man! You're in the clear!

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 3:26pm

    Re:

    Well, it's obvious that the Judge was shaken by the allegations, not stirred.

     

    reply to this | link to this | view in thread ]

  40.  
    identicon
    Anonymous Coward, Feb 24th, 2014 @ 4:01pm

    Re: Re: Shaken not stirred

    Bravo! I wish I could be half as witty as you.

     

    reply to this | link to this | view in thread ]

  41.  
    icon
    Coyne Tibbets (profile), Feb 24th, 2014 @ 7:02pm

    It's legal if you don't get caught

    Except, of course, it isn't. Ask any judge: "When does a murder occur? When the act is committed or when the murder is first discovered by the authorities?"

    The answer, pure and simple, is: at the time of the the act. Whether or when the murder is discovered is irrelevant; if you kill someone, you have violated the law.

    Likewise, an infraction of a citizen's civil rights occurs at the time of the act. The judge keeps trying to hand-wave that away, saying, "It's only illegal if they get caught."

    If a citizen had the temerity to make that statement, the judge would throw his gavel and hit the idiot right between the eyes. So then he has the hypocritical nerve to assert the same thing on behalf of the government?

     

    reply to this | link to this | view in thread ]

  42.  
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    btrussell (profile), Feb 26th, 2014 @ 1:52am

    Re: Re:

    That was dry. Very, very dry.

     

    reply to this | link to this | view in thread ]

  43.  
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    btrussell (profile), Feb 26th, 2014 @ 1:56am

    Re:

    Exactly! There are no lost sales either because the sale never happened...whoa, that actually makes sense, it'll never hold.

     

    reply to this | link to this | view in thread ]

  44.  
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    btrussell (profile), Feb 26th, 2014 @ 1:58am

    Re: Judge Martini

    His Mother had one to many Martinis'.

     

    reply to this | link to this | view in thread ]

  45.  
    icon
    btrussell (profile), Feb 26th, 2014 @ 2:00am

    Re:

    "...all I ever got from a box of Cracker Jacks was a silly toy top."

    With all the drivers licenses they handed out I find that hard to believe.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    GEMont, Feb 26th, 2014 @ 2:22pm

    Murder is no longer a crime.

    To rephrase the current logic of US authority:

    If you are raped but are also drugged so that you do not wake up while being raped, then you were not raped.

    Using this logic, murder is a crime that cannot actually happen, because the victims of murder cannot be aware that they were murdered... cuz they're dead.

    Thus, if you were murdered, you were not murdered, because you did not know you were murdered.

    You really gotta love these corporate criminal types.

     

    reply to this | link to this | view in thread ]


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