Monday, 30 March 2015

NZ cedes sovereignty to US judicial system

Forget about the TPPA.

NZ has already ceded its sovereignty.

How come a fucking US court has jurisdiction over someone who has never set foot in Amerika and whose assets are in a supposedly sovereign country.

Welcome to the 51st state!

This has not attracted anything but bland reports such as US court delivers another setback to Dotcom in the NZ media and I have yet to see anyone on social media realise that Key and his fascist cronies have already ceded NZ sovereignty.

Mega downer: Kim Dotcom loses $67mn of assets to US govt
Megaupload streaming service mogul Kim Dotcom has just been slapped with a civil penalty from the US government. The lawsuit will cost him $67 million worth of assets, including cars, property and luxury goods.

Kim Dotcom (Reuters / Nigel Marple)
29 March, 2015

The victory by the US court comes as he lost the right to contest the seizure of the assets.

Dotcom, who is wanted in the United States for copyright infringement through the former file-sharing website, told the Herald on Sunday that this is indicative of the “sad state” of the US justice system.

"By labeling me a fugitive, the US court has allowed the US government to legally steal all of my assets without any trial, without any due process, without any test of the merits,” he said, vowing to appeal the decision, which his legal team says would likely not hold up in New Zealand or Hong Kong courts.

I never lived there
 I never traveled there
 I had no company there 
 But all I worked for now belongs to the U.S. 

The asset forfeiture was a default judgment. I was disentitled to defend myself,” the internet guru went on. "First the US judge ruled that I can't mount any defense in the asset forfeiture case because according to him I'm a 'fugitive'… Think about that for a moment. I have always said that I'm innocent. There was no conspiracy. I have done nothing wrong."

He also claims the US government had to act in this way to spare the New Zealand authorities from having to return all of his assets in mid-April, when he claims he will have gone to the Appeals Court and won them back.

"They would have had to return everything. Imagine all of the New Zealand media at the mansion when the police has to return everything, all my cars, my TVs, my servers and me directing them where to put my stuff."

READ MORE: ‘If I was Iran, I would build the bomb’: Media mogul Kim Dotcom speaks out on nukes

The 40-year-old’s legal perils started in January 2012, when a police raid on his home in Coatesville, near Auckland, led to the shutdown of his file-sharing service Megaupload. An FBI-led investigation led to charges laid against him and his partners.

Earlier in March, the media mogul also successfully fended off an attempt by US attorneys to revoke his bail, under which he has been at liberty since 2012.

But Dotcom’s not out of the woods yet. Other defendants and former colleagues in the Megaupload case will be facing an extradition hearing in June. Dotcom had earlier asked for it to be postponed, but the request was denied.

READ MORE: Megaupload programmer gets 1yr in prison for role with Dotcom’s site

Last month, a computer programmer and former colleague of Dotcom’s, Andrus Nomm, pleaded guilty to charges of internet piracy and struck a deal with US police, under which he agreed to testify against his former colleagues in exchange for reduced jail time.

Meanwhile, elsewhere in the US judicial system

A court case so secret, US Govt says it can't go on

Central Intelligence Agency headquarters in Washington DC.

29 March, 2015

Imagine that someone has wronged you, and you sue them.

Then the Government magically appears in court and asks that your suit be dismissed because, for reasons it won't tell you, state secrets might be dredged up in the course of the litigation.

You have no idea what they're talking about.

But after secret discussions with the judge from which both you and the defendant are excluded, the court dismisses your suit.

This Kafkaesque scenario couldn't happen in the U.S., right?

Not until Monday, it couldn't. That's when a federal judge in the Southern District of New York did exactly that, dismissing a defamation suit by Greek shipping magnate Victor Restis against a shady advocacy group called United Against Nuclear Iran.

This is the first time a US court has dismissed a lawsuit on the basis of state secrets when the case didn't involve either the Government or a defence contractor deeply enmeshed with classified government contracts.

It's also a marvellous example of how secrecy fundamentally distorts the legal process and subverts the rule of law.

When I write about a case, I usually begin by describing the facts.
Here the facts are so secret I can barely say anything.

United Against was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran.

Its board includes former directors of foreign intelligence services including the U.K.'s MI-6, Germany's BND - and Israel's Mossad.

One of the strategies pursued by United Against is a campaign to "name and shame" entities that trade with Iran.

The organization named Restis, who in turn sued United Against for falsely claiming his companies were "front men for the illicit activities of the Iranian regime."

The Department of Justice intervened in September, asserting the state secrets privil—Ćege.

That so-called privilege doesn't come from the Constitution or from statute.

It's an unwritten judicial rule that allows the Government to block discovery of information through ordinary litigation "when disclosure would be inimical to national security," as the district court described it.

What followed would be comical if it weren't so serious.

The government asserted privilege "by submitting classified declaration by the head of the department which has control over the matter."

But even the identity of that official is itself a secret that the court declined to reveal.

The Government said that "disclosing even the identity of the agency involved creates an unwarranted risk of exposing the information it seeks to protect."
The court accepted that argument.

In addition to reading the Government submission, the court held two meetings with government lawyers, from which plaintiffs and defendants were excluded.

The court then decided that, because it owed "utmost deference" to the executive's concern about the effects of disclosure on national security, it would shut down discovery in the case.

So far, so bad. By denying the attorneys the opportunity to know anything at all about what material was supposed to be suppressed, and even what government agency was seeking its suppression, the judicial branch made itself into a wing of the executive.

Judicial independence under Article III of the Constitution is out the window if the court exercises "utmost deference" and doesn't allow any adversarial process.
Inevitably, the Government will get what it wants.

There was worse to come.

Having barred access to information, the court went on to dismiss the case altogether.

Even if Restis could prove his case without the excluded evidence, the court said, it was "convinced that further litigation of this action would impose an unjustifiable risk of disclosing state secrets."

That is, even if the court were to block discovery of any actual state secret, the mere fact of the lawsuit would have a tendency to endanger national security - even if the trial took place entirely in secret.

The court thus came perilously close to saying that the case should be dismissed because it might be embarrassing to the Government.

The trial judge, Edgardo Ramos, admitted that the outcome was "harsh."
As he put it, "plaintiffs not only do not get their day in court, but cannot be told why".

This formulation captures exactly why the case violates the rule of law.

Dismissing a lawsuit between private parties without giving a reason is the very opposite of the judicial function, which relies fundamentally on reason-giving.

Where no reasons are given, we aren't in the realm of legal decision-making.
We're in the universe of absolutism or autocracy.

What makes matters worse is the lingering possibility, indeed probability, that what the Government fears is not a true threat to national security, but a severe case of embarrassment.

It's difficult to escape the conclusion that United Against is a front organization for U.S. intelligence, possibly acting in conjunction with other foreign intelligence service.

The allegation that Restis was doing business in Iran seems almost certain to have come from one of these intelligence service.

Would acknowledging cooperation between, say, the Central Intelligence Agency and Mossad regarding Iran really upend national security?

True, it's a delicate time in the Iran nuclear negotiations.

But no one, least of all the Iranians, doubts that U.S. and Israeli intelligence collaborate.

When only the Government gets to speak, and does all its talking in secret, there's no check over its actions.

Who is a district judge to stand up to the anonymous director of some anonymous intelligence agency?

The result is not just bad for the rule of law.

It's an embarrassment to the entire judiciary. Here's hoping Restis appeals, and that the appellate court, and maybe even the Supreme Court, has a chance to revisit the issue - and maybe save the dignity of the judiciary and the majesty of the rule of law.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently "Cool War: The Future of Global Competition."

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