Judge upholds use of secret material against alleged ISIS conspiracist, but blasts secrecy of espionage court, sloppy reporting

A federal judge in Boston yesterday upheld the government's effort to use information stemming from wiretaps that picked up conversations between an Everett man charged with conspiring to kill cops for ISIS and Usaama Rahim, fatally shot by a BPD officer and an FBI agent in Roslindale when he went after them with a knife in 2015.

But in his order, US District Court Judge William Young castigated the Foreign Intelligence Surveillance Court, which holds secret hearings at which to consider granting federal agents permission to eavesdrop on possible foreign agents. And he went after the media as well.

Young started his ruling on a request from David Wright's attorneys to toss any evidence resulting from federal wiretaps as unconstitutional by writing that his review of the government's actions in the case showed federal lawyers have "acted with scrupulous regard for the rights of the defendant Wright and have conducted themselves with utmost fidelity within the limited powers accorded them under the Foreign Intelligence Surveillance Act."

But, he continued, "It is equally appropriate to observe that almost no one will believe me."

And with that, Young launched a broadside:

Why this sad state of affairs? It is an amalgam of the government's seemingly obsessive over classification coupled with the media's shallow reporting and an equally shallow public awareness of or interest in what is actually happening.

First over classification - no one disputes the government's appropriate interest in the classification of actual intelligence data. Here, however, the government has thrown a cloak of secrecy over the most basic procedures of the FISA Court. The result has not been to enhance the authority of that court but rather to call its judgments into question and to treat its important functions with a certain disdain. ... Reducing the classification of procedural safeguards imposed by the FISA Court would go a long way toward restoring confidence in its decisions.

The press, meanwhile, is forever reporting that the court never rejects a government wiretap request. That's partly because the government only submits requests it has high confidence it can obtain. But even then, he said, the question shouldn't be how many requests the court's judges deny, but how many they modify, to make them more restrictive. And in 2015, he writes, of 1,457 requests to the court, 80 were modified by the judges. In Massachusetts, of 25 requests, 10 were modified, he writes.

While respecting privacy and national security concerns, the obligation appears to devolve upon the courts themselves to explain - both case by case and in the aggregate - how daily they patrol the boundaries of the Fourth Amendment to our Constitution. The press will not publish, broadcast, or analyze the fine print. To continue as we are is to deny our citizens an understanding of the doctrine of separation of powers and sap the vitality of fundamental constitutional values.

H/t Michael Scarcella.