This document, Judge Richard Bennett’s rulings on the admissibility of a number of documents presented in CIPA hearings, is interesting for several reasons, some of which I may return to. But I wanted to highlight that the government is trying to introduce evidence under a silent witness rule, something I hadn’t seen mentioned before. [Update: Josh Gerstein covered this back in March. I stand corrected.]

In his ruling on item 14, Volume I, Exhibit 11, Bennett writes,

A ruling on the relevance and admissibility of Classified Statements 1 and 2 should be deferred until the Court rules on the government’s request to invoke the silent witness rule. The government agrees that these written statements of its expert witness will be inadmissible if the Court does not invoke the silent witness rule. The defense objects to the use of the silence [sic] witness rule and the introduction of these statements. The parties’ arguments relating to these documents are reserved.

In other words, the government has requested, but Bennett is still considering, the use of the silent witness rule for some evidence in this case.

As Steven Aftergood explained back in 2007 when the government won approval for it in the AIPAC leak case, the silent witness rule basically allows the government to present evidence to the jury that the public won’t see.

Last week, Judge Ellis approved limited use at trial of the so-called “silent witness rule,” an unconventional tactic that permits prosecutors to withhold evidence from the public and to disclose it only to the parties, the witnesses and the jury. Because this amounts to closing the trial, it runs the risk of infringing on constitutional guarantees that trials will be public.

The silent witness rule “is a novel evidence presentation technique that has received little judicial attention is the context of the use of classified information in trials,” Judge Ellis noted. “No published decision has explicitly approved or endorsed use of the rule in this context.”

This ability to do this–to limit what the public can see at the trial–is a tactic the government uses at Gitmo.

I’m just saying.

It’s impossible to tell what the government is trying to introduce. Elsewhere, references to the government’s expert witness seem always to refer to Catherine Murray, their classification expert, whose review of the charged documents are a central dispute in this trial.

That’s interesting, because in a defense filing submitted yesterday, they made it clear that Drake intends to show that information alleged to be classified in this case was introduced in the public domain, thereby proving that it has not been “closely held.”

Indeed, the evidence shows that the allegedly classified information has been officially released and discussed by numerous agencies and officials of the United States government, including NSA, the Director of National Intelligence, the United States Congress, the Department of Justice, and the White House.

The very end of that filing focuses on the government’s expert (note the reference to a singular expert; the connection between the public domain question and the substitutions at issue here is not entirely clear).

To defend himself against these charges, Mr. Drake must be allowed to cross-examine the government’s expert witness and to test her opinion that the documents in Mr. Drake’s home are classified. He must be able to elicit and present evidence that the documents he possessed did not contain national defense information, that he did not believe they contained national defense information, that he did not specifically intend to violate the law when he brought them home, and that his statements to federal agents in regard to the documents were not false.

Now these two issues–the two statements from a government expert who may or may not be Catherine Murray that the government wants to introduce into evidence without letting the country’s citizens see it, and the defense claim that the government is trying to hide Murray’s statements that relate in some way to information in the public domain–may well be entirely unrelated. As I said, Murray’s review of the documents will be at the center of the trial for many reasons.

But it is worth noting that in addition to all the other novel, expansive claims about the government’s ability to keep stuff–even unclassified stuff–secret  in this case, the government is also trying to add yet another layer of secrecy here.

WSJ has an article reporting on the purportedly Chinese-launched GMail hacks that targeted top White House officials.

The article is interesting not because it claims the Chinese want to hack top officials. Who do you think they’d be most interested in hacking?

Rather, the article is interesting for some of the implications bandied about in the article. For example, Darrell Issa and CREW’s Melanie Sloan suggest the only reason the Chinese would hack the GMail accounts of White House officials is if those people were improperly conducting official business on GMail.

“If all White House officials were following rules prohibiting the use of personal email for official business, there would simply be no sensitive information to find,” said Rep. Darrell Issa, Republican chairman of the House Oversight and Government Reform Committee, and a frequent thorn in the Obama administration’s side. “Unfortunately, we know that not everyone at the White House follows those rules and that creates an unnecessary risk.”

Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a watchdog group, said the hacking “suggests China believes government officials are using their personal accounts for official business, because I doubt they were looking for their weekend plans or a babysitter’s schedule. Presumably, the Chinese wouldn’t have done this if they weren’t getting something.”

More plausible is the suggestion that the Chinese were phishing for information they could then use to compromise other accounts.

Stewart Baker, a former homeland security official in the Bush administration, said he suspects the ultimate goal of the hacking may have been to use the email accounts as a stepping stone to penetrate the officials’ home computers.

“If you can compromise that machine, you may well be able to access the communications they are having with the office,” said Mr. Baker.

I’m most interested in all the assumptions here, that a bunch of Chinese hackers know precisely how the White House email system works. If that’s true, why haven’t we asked the Chinese to turn over the emails OVP deleted from the first days of the Plame leak investigation? And why haven’t we asked the Chinese to turn over all those emails hidden on the RNC’s server? Maybe they can also help us find all of John Yoo’s torture emails?

Given how common it is, these days, for top officials to just delete their most inconvenient emails, I’m thinking American citizens ought to invite Chinese hackers to help us reclaim all the official records our overlords try to destroy.

Even though he admits yet again that torture didn’t get Khalid Sheikh Mohammed and Abu Furaj al-Libi to reveal the name of Osama bin Laden’s courier, Michael Hayden has launched yet another round of sophism to defend the case that torture led to Osama bin Laden–and if it didn’t it produced a whole lot of information. The only thing that’s novel about this latest effort is the new contortions he goes through to try to avoid admitting that torture didn’t do what it was promised it would do: provide the most critical information quickly.

But it got me thinking.

Michael Hayden was a not-bad CIA Director. Particularly compared to his predecessors George “Slam Dunk” Tenet and Porter Goss and his Gosslings he was reasonably successful.

But he was a pretty big failure as head of the NSA.

There’s all the revelations the government wants to send Thomas Drake to jail for revealing: that Hayden chose to enrich SAIC with $1 billion of pork rather than invest $3 million in house for something that worked far better. That management failures prevented NSA from implementing the security improvements that might have prevented WikiLeaks, not to mention so much of the hacking done by our enemies.

And while I don’t hold it against him, under Hayden’s command, NSA did fail to find the 9/11 terrorists whose calls in the US had been picked up on wiretaps to an al Qaeda safe house. Nor did NSA pick the hijackers up as they were wiring their excess funds back to Dubai from a Giant store close to Ft. Mead.

But Hayden’s real failure, of course–and a near parallel to the torture decision that he says “I thank God that I did not have to make”–was in bowing to Bush and Cheney’s claim to inherent power to set up an illegal wiretap program that not only compromised Americans’ privacy, but didn’t work.

Indeed, the Inspectors General who reviewed Hayden’s illegal wiretap program found it to be about as ineffective as the CIA Inspector General found torture to be.

So why is Hayden wasting his breath boasting about how effective torture was rather than making specious claims that the illegal program implemented under his command nailed OBL?

Mind you, the NSA (or perhaps Pakistani SIGINT) played an absolutely critical role in tracking down the courier that led us to OBL. But no one claims the illegal program provided even a shred of intelligence that helped us find OBL. If anything, our belief in the magic of the illegal program–and SIGINT in general–apparently led counterterrorism types to dismiss the importance of couriers for some years after it should have become clear al Qaeda had taken measures to avoid using the telecom they knew Americans were tracking.

So why is Hayden blowing so much hot air about the value of torture? Would claims that the illegal wiretap program Hayden implemented played a role be even more ridiculous?

Jared Bernstein (whose blog I still recommend) has responded to his 2-day PEPCO power outage by posting the crummy infrastructure report card the US got in 2009:

Check out the 2009 Report Card from the American Society of Civil Engineers:Aviation D

Bridges C

Dams D

Drinking Water D-

Energy D+

Hazardous Waste D

Inland Waterways D-

Levees D-

Public Parks and Recreation C-

Rail C-

Roads D-

Schools D

Solid Waste C+

Transit D

Wastewater D-

America’s Infrastructure GPA: D

Estimated 5 Year Investment Need: $2.2 Trillion

Bernstein’s take (channeling Atrios) is that fixing all this infrastructure ought to be a good way to get 20 million people back to work.

But fixing just about every single one of these infrastructure problems is also a way to make our country more resilient to terrorism. Bridges? Dams? They make attractive terrorist targets, particularly if they’re already crumbling. Drinking water? Another vulnerability to terrorist attacks. Rails? We know Osama bin Laden was reviewing plans to derail trains (as it crossed a bridge–this one’s a twofer).

So can’t we start fixing this stuff and, rather than calling it stimulus, call it “counter-terrorism preparedness”? There’s no way, of course, the idiots in DC would support 2 trillion of stimulus, but their willingness to keep funding multiple wars in the name of terrorism–to the tune of trillions–show they might do so if we can give it a national security spin.

And between us? If we fixed things like levees and energy plants, we’d also be more resilient to things like earthquakes and climate change. Mind you, if Republicans found out about that, it’d be enough reason to defund it. So we’ll just keep that part a secret between us.

CNN has a report today on some of the many lawsuits victims of right and left wing violence have taken against Chiquita.

Family members of thousands of Colombians who were killed or who disappeared are suing Chiquita Brands International, alleging the produce company is liable because of its payments to paramilitaries.”We’re holding them accountable,” said Paul Wolf, a Washington-based attorney who is handling cases for family members of more than 2,000 victims.

[snip]

A federal judge in Florida is weighing whether the lawsuits, which constitute more than 4,000 claims against Chiquita, will go to trial.

I’m glad CNN has called attention to the suits. But I wanted to point out some of the important details, including the following details from a suit filed last March.

There’s the way Chiquita helped the right wing AUC import 3000 AK-47s.

In 2001, Chiquita facilitated the clandestine and illegal transfer of arms and ammunition from Nicaragua to the AUC.

[snip]

Instead of docking in Panama, the Otterloo [a ship registered in Panama and carrying 3000 AK-47s] instead went to Turbo, Colombia, where Chiquita, through Banadex, operated a private port facility for the transport of bananas and other cargo.

After the Otterloo docked at Chiquita’s port in Turbo, Banadex employees unloaded crates containing the assault rifles and ammunition. On information and belief, the AUC, which had free access to the port, then loaded these rifles onto AUC vehicles and took possession of them.

And there’s the way Chiquita helped the AUC export coke.

Colombian prosecutors have charged that the AUC shipped drugs on Chiquita’s boats carrying bananas to Europe.

[snip]

More than one and a half tons of cocaine have been found hidden in Defendant’s produce, valued at over 33 million dollars. Two of the ships on which drugs were found were named the Chiquita Bremen and the Chiquita Belgie.

And finally, there’s the way Chiquita relied on AUC to break the unions.

After its agreement with Chiquita, the AUC understood that one goal of its campaign of terror was to force laborers to work in the plantations. Anyone who disobeyed the order knew what would happen  to them. For example, one individual who worked in Chiquita’s offices at a plantation in Urabá, was present when paramilitaries arrived at the plantation and summarily executed a banana worker who had been seen as a troublemaker because his slow work held up the production line. Another individual saw paramilitaries arrive to threaten banana workers after a salary dispute.

[snip]

In addition to directly suppressing labor activity, the paramilitaries regulated the banana-growing population and protected Chiquita’s profitability by controlling the provision of medical services in the towns of Urabá. Residents of Apartadó reported that they feared seeing doctors because they believed that medical personnel were under the control of the AUC. On information and belief, this arrangement benefited Chiquita because it allowed the paramilitaries to inform the company of its employees’ medical issues that could potentially affect labor productivity, including pregnancy.

Whether or not this suit goes forward (and new documents released in April by National Security Archive make it clear that Chiquita considered their ties to terrorist groups a quid pro quo), it’s important to document what it means when corporations team up with terrorist organizations.

Obama wants to extend “free” trade with Colombia, when it’s not all that clear that these practices have ended.

For some time, it has become increasingly clear that our politicians can pursue policies that benefit just their rich donors–austerity, killing Medicare, bailing out banksters at the expense of homeowners–while ignoring their purported constituents.

So I guess it comes as no surprise that advertisers are beginning to adopt the same approach.

The top 10 percent of American households, [AdAge] adds, now account for nearly half of all consumer spending, and a disproportionate share of that spending comes from the top 10’s upper reaches.

“Simply put,” sums up Ad Age’s David Hirschman, “a small plutocracy of wealthy elites drives a larger and larger share of total consumer spending and has outsize purchasing influence — particularly in categories such as technology, financial services, travel, automotive, apparel, and personal care.”

[snip]

“As the very rich become even richer,” as Ad Age observes, “they amass greater purchasing power, creating an increasingly concentrated market for luxury goods and services as well as consumer goods overall.”

In the future, if current trends continue, no one else but the rich will essentially matter — to Madison Avenue.

“More than ever before,” the new Ad Age paper bluntly sums up, “the wealthiest households will be the households with significant disposable income to spend.”

Why market to the mere middle class (which is busy, in any case, falling out of the middle class) when marketing to the super rich is so much more lucrative?

If advertisers really do start blowing off the middle class, it might have an interesting mixed result. On one hand, there may be a greater gap between what people see on TV commercials and shows, driving insecurity about not matching the lifestyles you see on TV (then again, maybe advertisers will just stop advertising on TV).

But if the middle class isn’t the target of a barrage of advertising, it may lead to a less materialist lifestyle, leaving people to invest in their communities rather than their toys.

Who knows? One thing is clear: increasing inequality is totally defining our society. And it’s not entirely clear how the newly redefined society is going to end up.

Ellen Nakashima has a piece following up on the WSJ story previewing DOD’s cyberwar (which I posted on here). Before you read it, though, I wanted to suggest another reason we may be seeing this policy early (in addition to the hacking of all the defense contractors, now including L-3; and note, Nakashima references this legislation at the end of her article).

Last Thursday, the Defense Authorization bill passed the House. It retains Section 962, to which the Administration objected, which reads,

SEC. 962. MILITARY ACTIVITIES IN CYBERSPACE.

(a) AFFIRMATION.—Congress affirms that the Secretary of Defense is authorized to conduct military activities in cyberspace.

(b) AUTHORITY DESCRIBED.—The authority referred to in subsection (a) includes the authority to carry out a clandestine operation in cyberspace—

(1) in support of a military operation pursuant to the Authorization for Use of Military Force (50 U.S.C. 1541 note; Public Law 107–40) against a target located outside of the United States; or

(2) to defend against a cyber attack against an asset of the Department of Defense.

(c) BRIEFINGS ON ACTIVITIES.—Not later than 120 days after the date of the enactment of this Act, and quarterly thereafter, the Secretary of Defense shall provide a briefing to the Committees on Armed Services of the House of Representatives and the Senate on covered military cyberspace activities that the Department of Defense carried out during the preceding quarter.

(d) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to limit the authority of the Secretary of Defense to conduct military activities in cyberspace.

So as you read Nakashima, remember that the Obama Administration objected to a section that authorized cyberwar in two circumstances–in support of an AUMF against a target outside of the US and in defense against a cyber attack on a DOD asset–and required quarterly briefings.

OK, now go read Nakashima.

Within the context of the Defense Authorization, a few points of DOD’s campaign to describe what they believe their cyberwar policy to be stick out. First, it envisions preparatory actions–basically spying on a presumably non-belligerent adversary’s infrastructure to map out how DOD would launch a cyberattack if the time came.

The framework clarifies, for instance, that the military needs presidential authorization to penetrate a foreign computer network and leave a cyber-virus that can be activated later. The military does not need such approval, however, to penetrate foreign networks for a variety of other activities. These include studying the cyber-capabilities of adversaries or examining how power plants or other networks operate. Military cyber-warriors can also, without presidential authorization, leave beacons to mark spots for later targeting by viruses, the official said.

In other words, DOD is indicating that it will engage in cyberwar activities outside of those authorized by Congress, activities which I’m sure they’re claiming fall under their “preparing the battlefield” giant loophole they use to engage in spywork.

Then there’s this:

Last year, for instance, U.S. intelligence officials learned of plans by an al-Qaeda affiliate to publish an online jihadist magazine in English called Inspire, according to numerous current and senior U.S. officials. And to some of those skilled in the emerging new world of cyber-warfare, Inspire seemed a natural target.

The head of the newly formed U.S. Cyber Command, Gen. Keith Alexander, argued that blocking the magazine was a legitimate counterterrorism target and would help protect U.S. troops overseas. But the CIA pushed back, arguing that it would expose sources and methods and disrupt an important source of intelligence. The proposal also rekindled a long-standing interagency struggle over whether disrupting a terrorist Web site overseas was a traditional military activity or a covert activity — and hence the prerogative of the CIA.

The CIA won out, and the proposal was rejected. But as the debate was underway within the U.S. government, British government cyber-warriors were moving forward with a plan.

As Nakashima goes onto explain, the British attack on Inspire managed to delay the publication of a bomb-making article in the magazine for two weeks. But it did eventually get published.

The Inspire story is fascinating not just because it reveals the ongoing turf war between DOD and CIA–and makes clear Mac Thornberry intends to let DOD win these battles.

But also, consider the cyberattack-which-shall-not-be-named: someone’s successful effort to ensure WikiLeaks couldn’t publish the State Department cables from a US server. The Inspire story makes it clear DOD is thinking in terms of take-downs of speech, which is precisely what the WL hack was.

And since WL was ultimately a compromise of DOD’s networks, it would solidly fall under the congressionally-defined defense “against a cyber attack against an asset of the Department of Defense.”

That is, it seems that Thornberry has authorized DOD to do things like hack WL. Congress seems to be in the business of helping the government exercise prior restraint.

That First Amendment sure was nice when we had it!

Though there’s just one weird aspect to this: DOD didn’t launch a cyberattack on WL when it compromised DOD resources: the Afghan and Iraq cables. Rather, it waited until all the DOD materials were already out, and then (we assume though don’t know) started attacking free speech to protect the State Department’s assets.

Anyway, all that prior restraint isn’t good enough, it seems, and the Administration is going to campaign for more lenient guidelines allowing DOD to wade through other countries’ infrastructure to figure out how to cyberattack them when the time comes.

I guess they can’t very well complain about the Lockheed and L-3 hacks then.

Earlier today, we learned that (thanks to Antonin Scalia) the word “suspicion” no longer means what it used to mean.

Now we learn that “protected” doesn’t mean what it used to mean.

As Josh Gerstein reports, the judge in the Thomas Drake case has agreed to let the government protect unclassified information using the Classified Information Procedures Act. But as Drake’s lawyers make clear, the process of substitution is making unclassified information look classified.

Defense lawyers contend the prosecutions proposed substitutions would be obvious to jurors, despite Bennett’s ruling that they they should be “seamless.” Prosecutors say some of the changes will be seamless but others cannot be because they pertain to handwritten notes that can’t be modified without jurors noticing.

Defense lawyers also say that if jurors are aware of the changes, they’ll conclude that the information Drake is accused of mishandling is worthy of being treated as national secrets. “This will signal to the jury that the Court and the government believe information in the document was so potentially damaging to national security that it had to be withheld from the public — the very fact they must decide,” defense attorney Deborah Boardman wrote in a filing Monday.

Most interesting, though, is the Defense observation that one of the documents the government will introduce at trial defines “protected” differently than the government is defining it to claim it must be substituted under CIPA.

The defense has briefed its position on the Court’s decision to impose substitutions for relevant, unclassified information that the government deems “protected,” and we will not reiterate our arguments here. However, we thought the Court should be aware of the fact that NSA, in its employee Security Agreements, defines the term “protected information” in the following manner: “information obtained as a result of my relationship with NSA which is classified or in the process of a classification determination pursuant to the standards of the Executive Order 12958.” Thus, according to an NSA document, which will be a government exhibit in this case, “protected information” is “classified” information. However, the government has led the Court to believe that “protected information” is unclassified information that NSA claims deserves protection. NSA cannot have it both ways. [my emphasis]

That might make sense if language worked the way it’s supposed to. But it appears we’ve entered that stage of late Empire where words don’t mean what they used to mean anymore.

DOD has announced that prosecutors have recommended charges against KSM and the other alleged 9/11 plotters.

The Department of Defense announced today the office of military commissions prosecutors have sworn charges against five individuals detained at Guantanamo Bay:  Khalid Sheikh Mohammed, Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi.

The prosecutors have recommended that the charges against all five of the accused be referred as capital.  Capital charges may only be pursued with the convening authority’s approval.  Under rules governing military commissions, the accused will have the right to counsel learned in applicable law relating to capital cases.

The charges allege that the five accused were responsible for the planning and execution of the attacks on New York, Washington D.C. and Shanksville, Pa. that occurred on September 11, 2001.  Those attacks resulted in the deaths of nearly 3,000 people.

The charges are allegations that the accused committed offenses that are chargeable under the Military Commissions Act of 2009, 10 U.S.C. §§ 948a, et seq. There are eight charges common to all five of the accused: conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.  The accused are presumed innocent and may be convicted only if their guilt is proven beyond a reasonable doubt.

These charges go beyond what is necessary to establish that the 9/11 co-conspirators may be lawfully detained under the 2001 Authorization for Use of Military Force, as informed by the laws of war — an issue that each Guantanamo detainee may challenge in a habeas petition in federal court.

In accordance with the Military Commissions Act of 2009, the sworn charges will be forwarded to the Convening Authority, Bruce MacDonald.  The convening authority will make an independent determination as to whether to refer some, all, or none of the charges for trial by military commission.  If the convening authority decides to refer the case to trial, he will designate commission panel members (jurors).  The chief trial judge of the Military Commissions Trial Judiciary would then assign a military judge to the case.

How many times have we faced this stage already? How many times over could we have prosecuted KSM already if we had just used existing, rather than Kangaroo, courts? How many more years will it take to determine whether KSM can plead guilty so as to martyr himself?

SCOTUS has just ruled unanimously that John Ashcroft can’t be sued by Abdullah al-Kidd for using a material witness warrant to incarcerate him. The 8 justices (Elena Kagan recused herself) all agree there was no law explicitly prohibiting this kind of abuse of material witness warrants, so Ashcroft has immunity from suit.

Where the decision gets interesting is in the justices’ various statements about whether material witness warrants are valid under the Fourth Amendment. The court’s swing justice, Anthony Kennedy, basically invited a constitutional challenge of the material witness warrants themselves.

The scope of the statute’s lawful authorization is uncertain. For example, a law-abiding citizen might observe a crime during the days or weeks before a scheduled flight abroad. It is unclear whether those facts alone might allow police to obtain a material witness warrant on the ground that it “may become impracticable” to secure the person’s presence by subpoena. Ibid. The question becomes more difficult if one further assumes the traveler would be willing to testify if asked; and more difficult still if one supposes that authorities delay obtaining or executing the warrant until the traveler has arrived at the airport. These possibilities resemble the facts in this case. See ante, at 2.

In considering these issues, it is important to bear in mind that the Material Witness Statute might not provide for the issuance of warrants within the meaning of the Fourth Amendment’s Warrant Clause. The typical arrest warrant is based on probable cause that the arrestee has committed a crime; but that is not the standard for the issuance of warrants under the Material Witness Statute. See ante, at 11 (reserving the possibility that probable cause for purposes of the Fourth Amendment’s Warrant Clause means “only probable cause to suspect a violation of law”). If material witness warrants do not qualify as “Warrants” under the Fourth Amendment, then material witness arrests might still be governed by the Fourth Amendment’s separate reasonableness requirement for seizures of the person. See United States v. Watson, 423 U. S. 411 (1976). Given the difficulty of these issues, the Court is correct to address only the legal theory put before it, without further exploring when material witness ar-rests might be consistent with statutory and constitutional requirements.

Mind you, he remains coy about what he thinks about the material witness warrants, as his language makes clear: “uncertain,” “might,” “unclear,” “more difficult,” “more difficult,” “possibilities,” “might not,” “might.”  Of note, though, he neither endorses a rather crazy argument Antonin Scalia makes (joined by the usual suspects)–that witnesses to a crime may now be considered suspects of a sort–nor Ruth Bader Ginsburg’s trashing (joined by Sotomayor and Breyer but not Kennedy) of that claim.

Here’s Scalia’s assertion:

Needless to say, warrantless, “suspicionless intrusions pursuant to a general scheme,” id., at 47, are far removed from the facts of this case. A warrant issued by a neutral Magistrate Judge authorized al-Kidd’s arrest. The affidavit accompanying the warrant application (as al-Kidd concedes) gave individualized reasons to believe that he was a material witness and that he would soon disappear.The existence of a judicial warrant based on individualized suspicion takes this case outside the domain of not only our special-needs and administrative-search cases, but of Edmond as well.

A warrant based on individualized suspicion in fact grants more protection against the malevolent and the incompetent than existed in most of our cases eschewing inquiries into intent.

Here’s Ginsburg’s response:

The Court thrice states that the material witness warrant for al-Kidd’s arrest was “based on individualized suspicion.” Ante, at 6, 8. The word “suspicion,” however, ordinarily indicates that the person suspected has engaged in wrongdoing. See Black’s Law Dictionary 1585 (9th ed. 2009) (defining “reasonable suspicion” to mean “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity”). Material witness status does not “involv[e] suspicion, or lack of suspicion,” of the individual so identified. See Illinois v. Lidster, 540 U. S. 419, 424–425 (2004).This Court’s decisions, until today, have uniformly used the term “individualized suspicion” to mean “individualized suspicion of wrong-doing.”

[12 cases–many of them the ones used to authorized warrantless wiretaps–cited]

The Court’s suggestion that the term “individualized suspicion” is more commonly associated with “know[ing] something about [a] crime” or “throwing . . . a surprise birthday party” than with criminal suspects, ante, at 6, n. 2 (internal quotation marks omitted), is hardly credible. The import of the term in legal argot is not genuinely debatable. When the evening news reports that a murder “suspect” is on the loose, the viewer is meant to be on the lookout for the perpetrator, not the witness. Ashcroft understood the term as lawyers commonly do: He spoke of detaining material witnesses as a means to “tak[e] suspected terrorists off the street.” App. 41 (internal quotation marks omitted).

And here’s Scalia’s retort to that:

JUSTICE GINSBURG suggests that our use of the word “suspicion” is peculiar because that word “ordinarily” means “that the person suspected has engaged in wrongdoing.” Post, at 3, n. 2 (opinion concurring in judgment). We disagree. No usage of the word is more common and idiomatic than a statement such as “I have a suspicion he knows something about the crime,” or even “I have a suspicion she is throwing me a surprise birthday party.” The many cases cited by JUSTICE GINSBURG, post, at 3, n. 2, which use the neutral word “suspicion” in connection with wrongdoing, prove nothing except that searches and seizures for reasons other than suspected wrongdoing are rare.

In other words, Scalia wants to broaden the Fourth Amendment to sanction searches (and arrests) of people suspected of knowing something or doing something (throwing a birthday party!), rather than just those suspected of doing something illegal.

Not only does Scalia’s novel interpretation of the word “suspicion” pre-empt future challenge to material witness warrants’ constitutionality, but it also lays a novel groundwork for sanctioning all the domestic surveillance the government has been conducting. After all, the government is wiretapping (or tracking the geolocation of) people who may or may not have committed a crime, but are suspected solely of talking to or hanging out in the vicinity of a suspected terrorist.

And because Kennedy didn’t tip his hand in either direction, that’s the kind of interpretation the government will use–no doubt in its secret interpretations of the laws–to claim it can surveill even those of us suspected of no crime.

Because suspicion doesn’t mean what it used to mean.