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The Government’s Addiction to ‘Secret Law’

426 points by af16090 10y ago

donatj 10y ago
I've said it many times, but we are not truly a nation of the people if the people don't know everything the government is doing.
- pg_is_a_butt 10y ago
  if you dirty people knew what we were doing, then you would just get even more dirtier. don't you realize you people are terrible? #hitler
- fullofit 10y ago
  That's an attractive sentiment but the reality is more of a spectrum. Should every government official be required to wear a body cam and record every conversation they have? Should we be able to track the position of every soldier in real time? What are the implications of every negotiation being public?
  - tehwalrus 10y ago
    > Should we be able to track the position of every soldier in real time? No, but that's not what the article is about. There's an important difference between laws and orders/realtime tactical information.
    - fullofit 10y ago
      The article concludes that secrecy is necessary but requires a process with more checks and balances.
    - cryoshon 10y ago
      excellent catch, the conflation of laws and policies with tactical information is a standard trick in the disinformation/propaganda/useful idiot tact of minimizing when our government goes hog wild without our permission.
  - mtgx 10y ago
    Everything is a spectrum. Such comments obviously refer to the fact that the U.S. gov is far from having the necessary level of transparency, despite Obama's promises to make his administration "the most transparent in history" (everyone remember that one? I'm sure he's still having a good laugh about it every now and then.)
  - wyager 10y ago
    There's a huge difference between keeping some amount of critical information (like the specifics of current military deployments) secret versus keeping laws and court proceedings secret. There is no reasonable justification for the latter.
  - heisenbit 10y ago
    No, not all needs to be public. Particularly negotiations while they happen need some privacy otherwise there is a risk they degenerate to a series of individual win-loose battles when a bundle of compromises would yield a win-win. But one needs to take a look at the impact the IT industry had on concentration of knowledge and power. A lot of things used to take more people and was so subject to more checks and less privacy. Today these things can be kept perfectly private. Right now due to less than perfectly implemented systems once in a while a door to a cache of "private" information is opened. These caches contain a mixture of stuff that should have been private and stuff that really should have been published a long time ago even if somewhat embarrassing. These leaks are destructive in the sense that they undermine the sense of privacy in areas where this is vital and also undermine the trust as it becomes clear too much is kept under the rug. It also opens the door to all sort of conspiracy pushers. It is highly problematic that the society seems to be reliant on the leaks to stay informed. Sharing information makes one vulnerable. It is also vital to connect. Governments need to decide on how they relate to their people. Actually the people need to tell the governments what is acceptable and what not...
  - gaius 10y ago
    Should every government official be required to wear a body cam and record every conversation they have? Yes, and we have the technology now to stream it live. If someone feels entitled to spend my money and tell me how to live, it's the least they can do.
    - fullofit 10y ago
      But who? Librarians? Public university employees? How much transparency do you want?
      - gaius 10y ago
        Elected politicians and their direct reports.
  - white-flame 10y ago
    A public servant is beholden to the public. So yeah, there should be no problem with their official representational capacities being 100% recorded, in-office discussions and all. Soldiers, as far as I understand, are not technically public servants. But correct me if I'm wrong.
grzm 10y ago
I'm glad to see discussions like this that are looking beyond the election about how we can move forward to increase transparency, working to hopefully regain some of the public's trust. An open question is whether we as a nation can keep pressure on the officials to get changes made. Difficult to do in the best of circumstances and even more so in the current state of polarization and divisiveness.
- chrisdotcode 10y ago
  What compounds this problem is that nobody cares about anything regarding this until they're locked up themselves. And even then, since it's just one changed mind, it's hard to move the incredibly strong tide of the government. How can we get the populous to care, but more than just a 30 second "oh that's not good" then resuming with their normal life?
- TheGirondin 10y ago
  It's looking like we are going to have to wait at least 8 before making progress on transparency in the US.
  - grzm 10y ago
    I'm trying to figure out a way to address your comment in a constructive way. Does "wait at least 8" imply doing nothing now? That's how I read your comment, so please correct me if I'm wrong. I don't think there's a quick and easy solution. Everything's not going to be changed overnight--even if we all agreed on what the final state should look like. I'd like to think we can figure out ways to move forward in the direction we generally want to go, knowing that it'll take a while to get there. I do think only waiting is going to make things worse, harder to change as time goes by and the current situation becomes even more entrenched. There are multiple projects here, too. One is to increase transparency. Another is to identify common goals that have support across the divides we currently see. I'm sure there are others. Identifying common goals and building support is something I don't think we need to wait for. I apologize if I've put words in your mouth. Please correct me if I have. Edit: Added thoughts on actions to start now.
- 10y ago
wyldfire 10y ago
> When President Obama issued procedures and standards for using lethal force against suspected terrorists overseas, agency officials were bound to follow them. It's a perpetual, boundless war fought on our behalf. It's too bad Congress can't find a way to permit this activity in some limited fashion without just ignoring it (congress please RTFM: Article I, Section 8, Clause 11). This sets a horrible precedent for future presidents. We have ceded enormous discretion to the executive here. It seems prudent to have a ton of oversight and disclosure surrounding programs that allow for execution of individuals, regardless of where they live. Footnote: Rep. Lincoln (regarding conflict w/Mexico over disputed Texas): "The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."
- mtgx 10y ago
  This. People need to start demanding that all "strikes" against a country are first approved by Congress and for a limited period of time. The president should only retain the power to attack if there is an imminent threat that can be stopped by a quick response from the president. Even then, it should still be evaluated as soon as possible by Congress to see whether the president's "emergency response" was warranted or not. And by imminent, I mean the actual dictionary definition of imminent, not "Obamalang" imminent: > In addition to conducting airstrikes against Isis is Syria on Tuesday, the Obama administration also announced it had also targeted the “Khorasan Group”, a separate al-Qaida-linked terrorist organization. They justified it by claiming that the group was plotting an “imminent” attack on the US. Before last week, hardly anyone had heard of the Khorasan Group (in fact, even their name was classified), so it’s difficult to judge from public information just how threatening their alleged plot really was. But when you add in the administration’s definition of “imminent,” it becomes impossible. > Take, for example, this definition from a Justice Department white paper, which was leaked last year, intended to justify the killing of Americans overseas: > [A]n “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future. > To translate: “imminent” can mean a lot of things … including “not imminent”. https://www.techdirt.com/articles/20140924/17360528630/obama-administration-learns-if-you-redefine-every-word-dictionary-you-can-get-away-with-just-about-anything.shtml https://www.techdirt.com/articles/20140924/17360528630/obama...
deleted 10y ago
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M_Grey 10y ago
Two quotes from Eisenhower spring to mind. "It is part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusionary [sic] foundation of complete unreliability and renders among our political leaders almost a greater fear of peace than is their fear of war." (D.W. Eisenhower) "In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power exists and will persist." (D.W. Eisenhower) He was absolutely right, and I'm not sure that there's a realistic way out of the decades-deep hole we've been digging for ourselves. Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack, it seems hopeless.
- wyldfire 10y ago
  > Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack I agree but we must admit that it's terribly difficult when faced with terrorism to consider the proposition that doing nothing might be better than any action. Harder still is to make the claim in front of politicians who might consider that an opportunity to spin it into a weakness rather than a strength.
  - AstralStorm 10y ago
    And thus terrorists win long term. Not by actually achieving what they want, but by paralysing their enemy and affecting them negatively. One would think people in "the land of the free" wouldn't act like either scared rabbits or enraged bull.
- chishaku 10y ago
  > I'm not sure that there's a realistic way out of the decades-deep hole I'm not either. I think broad-stroke laws reversing much of the damage are necessary. We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid. Regarding government documents in general, I think everything should be published by default. Instead of FOIA applications to have information published, agencies should be applying to keep their documents secret.
fit2rule 10y ago
The corruption of government begins with its secrets. A truly free people keep no secrets.
- intrasight 10y ago
  Well said. Although I only agree within the domestic context. Some countries make all their citizens tax returns public - that's a good kind of openness. However, when dealing with foreign countries there will often be a need for secrecy.
  - ChoHag 10y ago
    In order to continue to deal with foreign countries as they have hitherto been dealt, there will often be a need for secrecy.
Spooky23 10y ago
It's even worse than having secret law -- it's secret analysis and interpretation of law. In some cases, if a statute says: "All pens must be blue", and the administration's attorneys study the statute and determine "When the congress said that pens must be blue, we understand that they meant to say black", and they then make that determination secret. The outcome isn't secret law, but secret meta-law.
- MereInterest 10y ago
  Unfortunately, this isn't new, either, and happens by the courts as well. I still cannot comprehend how the draft does not violate the 13th Amendment. Reading the court cases, the argument seems to be "We know that involuntary servitude is forbidden, but surely they didn't mean this kind of involuntary servitude."
DannyB2 10y ago
Secret Laws Secret Interpretations of Laws Secret Courts Secret Warrants Secret Court Orders Secret Arrests Secret Trials Secret Evidence (not made available to the defense) Secret Convictions Secret Prisons Secret "enhanced interrogation" programs Gee, it sounds like we've become everything we were fighting against in the previous century. But it keeps the money flowing. Next after the military industrial complex is the for-profit prisons. Vacant cells mean lower revenue and thus degrade profits, executive bonuses and shareholder value. Our education system needs to be geared to produce just enough inmates to occupy the for profit prisons, and enough productive workers to pay for both the for profit prisons and military industrial complex.
- digi_owl 10y ago
  Authoritarianism comes in many guises...
- marcoperaza 10y ago
  Secret trials and convictions? Don't exist in the US. Also, evidence cannot be used in court but withheld from defense attorneys. You're just making this stuff up. There are no secret prisons either. If you're talking about battlefield prisons for captured combatants, that's obviously different than the criminal justice system, and is par for the course in warfare. You can definitely have secret warrants. How could you not? Imagine if the cops had to publish the details of wiretaps. What use would they be? Nevertheless, the secrecy must be justified and approved by a judge every few months.
  - groovy2shoes 10y ago
    Frankly, if a warrant would be useless if it weren't kept secret, I'd rather there be no warrant at all. And yes, I'm prepared to accept the consequences of that.
    - marcoperaza 10y ago
      You can only entertain such ridiculous thoughts because you live in a society that's not totally controlled by criminals. Try living in Mexico or Colombia and I bet you'd have a different opinion.
deleted 10y ago
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MichaelMoser123 10y ago
What is the point of a law if it is kept secret? Doesn't secrecy defeat the purpose of the concept of having laws and of due process? How did they establish the concept of secret laws and how are these laws passed if not in secret?
- MichaelMoser123 10y ago
  In socialist countries there were many unwritten regulations/instructions - what is allowed/verboten in politics? The law would not state that explicitly because the policy of the party could change suddenly (like with the Molotov - Ribbentrop packt) and the law is not that easily adjusted. Therefore behavior was regulated by taboos - don't say anything that is not stated by the state media, better don't say anything because politics keep changing. I wonder if secret laws are a move in the same direction.
throw2016 10y ago
The problem is larger than secret laws. Once the culture of paying lip service to fundamental principles is set within government it becomes systemic as has already happened in the US government. The danger then is a large number of individuals within government acquire a sense of self righteous purpose convinced of an existential threat that allows them to morally ride roughshod over the basic principles of the state, for instance to run surveillance systems. For them citizens become ignoramuses who have to be kept in the dark, so there is no scope for debate. And who would not protest so much if only they knew all this is just to keep them 'safe'. Of course its not. A shift from accountability towards secrecy is always about the accumulation and abuse of power. Unless they are prosecuted and held accountable in courts where their world view can be challenged in the open the culture will not change. It's important for citizens to nip this in the bud before its too late.
- TheSpiceIsLife 10y ago
  If, as you say, this has already happened in the US then it follows that it is too late to nip it in the bud. So where to from here?
emodendroket 10y ago
If this an option it's obvious why any administration would prefer to take it but it's an abdication of duty for Congress and the courts to do nothing about it.
Bartweiss 10y ago
"In this election year, as we honor our right to govern ourselves, those in power and those seeking it should affirm that a regime of secret law has no place in a democracy." This was a darkly amusing way to finish the article. Both major candidates have openly endorsed expanding government surveillance and reducing legal protections for privacy and access to law. There's no plausible election outcome that would scale back secret law.
- boyaka 10y ago
  The more people that vote third party, the more plausible it will become and the bigger the message is that's sent that we aren't happy.
  - white-flame 10y ago
    Right. Everybody asks if they can vote "None of the above". That's exactly the message that a 3rd party vote sends. People need to go out and have their objection counted, instead of just bemoaning the major candidates and staying home or voting for one of them. While the two-party side effect of our voting system will likely ensure that a Dem or Rep will get in again, boosting the third parties just to hit magic 5%, 10%, 15% tiers will actually be the best use of a vote to try to change the political landscape going forward. There would be access to more funding, media, debates, and DC facilities for the 3rd parties. The 3rd parties also need to push for election process reform, to get rid of the 2-party effect. Some localities are already testing the waters in more progressive voting schemes. This is all especially true if you're not in a swing state. If your state is already blue or red, another blue or red vote is a 100% wasted vote. Remember, you're not voting for the president; you're voting for who your state is going to vote for president. If that's already decided by a large mass of card-carrying party line voters, or by extreme public sway, that determination has already been made. Use your vote elsewhere. We need creative destruction in the political process, and deconstructing or at least challenging the incumbent parties is the only civilized option I see. Too many people throw their hands up at Dem vs Rep, and think the only way to change that is violent revolution.
  - JoeAltmaier 10y ago
titzer 10y ago
Secret law is no law at all. Law is a contract between a people and the government. Contracts where only one party has any knowledge are by definition not contracts. Instead, this body of secret law operates completely outside of public oversight, and generally grants the government powers that public, bonafide law would ban or tightly restrict. Secret law is _always_ a violation of the social contract, and we must reject it and punish actors in government who justify it, no matter the specious ends they pursue.
- DannyB2 10y ago
  The law is not a contract. It's a EULA. Shut up and click I AGREE already. :-)
- pbhjpbhj 10y ago
  I'm not defending (nor attacking) secret law but the obvious flaw to your argument from where I'm sitting is that if one has a representative democracy then secret laws can easily be a part of an open contract. We, the demos, can contract with our MPs (MEPs, Senators, etc.) to run the country in a way that they see as benefiting the demos to the greatest extent; we can contract with them to do just that. If then that beneficence includes hidden legislation there doesn't seem to be a democratic problem. It's like if you asked your plumber to "sort your heating out" and they installed rust inhibitor without your knowledge, it's still under contract and you instructed them to act. Of course you can insist on entirely open government. Personally I'm inclined to think that's going to lose out in some ways (inability to conduct covert investigations in to actions of criminals/businesses/states for example).
ttyltrful 10y ago
Can ignorance of a secret law be used as a defense?
mikecb 10y ago
Perhaps the United States has secret law because it's one of a very small set of jurisdictions (read: pretty much only) that subjects the most classified actions to a comprehensive and deeply integrated legal framework. For some interesting reading, check out Intelligence Oversight, a toolkit, by the Geneva Center for the Democratic Control of Armed Forces[1] [1] http://www.dcaf.ch/Publications/Overseeing-Intelligence-Services-A-Toolkit http://www.dcaf.ch/Publications/Overseeing-Intelligence-Serv...
puppetmaster3 10y ago
JFK http://tinyurl.com/zvg25wj http://tinyurl.com/zvg25wj
rayiner 10y ago
The article is ridiculous. Legal interpretations are only law when they have been adopted by a court. A private legal interpretation is not a "secret law." To the contrary, every organization of any substantial size has private interpretations of laws, and those interpretations are protected from disclosure by attorney-client privilege.
lucker 10y ago
'Secret law' is not law at all, and I consider it the duty of every American to expose and, if necessary, disobey it. Any legal professional participating in 'secret law' should be disbarred.
jwtadvice 10y ago
Some of the things I remember from this past administration: 1. Secret global and domestic surveillance. 2. Secret application of war powers. 3. Secret assassination programs. 4. Secret courts with secret warrants. 5. Secret torture programs. 6. Secret prison systems and secret "extraordinary" rendition. 7. Secret compulsion letters for secret military and intelligence efforts. 8. Secret deportations with a public relations face saying the opposite. 9. Secret sabotage programs. 10. Secret intelligence involvement in the production of US media. 11. Secret censorship of domestic protests. 12. Secret trade deals with secret foreign policy objectives. 13. Secret nuclear deals with historic US enemy states. 14. Secret transfers of money overseas. 15. Secret arms support overseas of groups in Syria. 16. Secret meeting in the Congress (the most of any president in the history of the country). 17. Secret interpretations of law. 18. Secret investigations of civil and human rights allegations.
gaius 10y ago
The word "privilege" quite literally means "private law".
SmokyBourbon 10y ago
The style of government (monarchy, dictatorship, democracy, communism) doesn't really matter. The size of government (how many things government does or doesn't do) doesn't really matter. It's the scale of government that matters. When the ratio of people to decision-makers becomes too high, the decision-makers stop fearing revolution and stop caring what the people think. Governments don't scale well. It's only a matter of time before we need to address this. We built a distributed system of 13 servers supporting 4 million users. A century later, we had 34 servers supporting 31 millions users. There was a major desync crisis causing us to lose 600,000 users so we moved most of the processes into a mainframe turning the now 36 servers into little more than proxy servers. This kind of worked for a while. A century and a half later we have 50 proxy servers supporting 320 millions users. The mainframe is barely responding to requests. Half of the engineers want to upgrade the mainframe. The other half want to move some of the processes back to the proxy servers. Instead, we should be moving the app to the cloud. The problem is nobody knows what an AWS for government would look like.
white-flame 10y ago
This part absolutely disgusts me: Even when they have access, lawmakers often fail to push back against interpretations that go too far. After all, they have little incentive to take on the national security establishment when their constituents are not even aware that a problem exists. As a representative, you are there to uphold the constitution and deal with all the issues that would otherwise swamp the general public. You are not micromanaged by the people. Your general representation has been elected. We do not elect you to sit on your butt and wait for "incentives". DO YOUR JOB.
alanh 10y ago
The government considers transparency a flaw and attempts to route around it.

426 points by af16090 10y ago

I've said it many times, but we are not truly a nation of the people if the people don't know everything the government is doing.

pg_is_a_butt 10y ago
if you dirty people knew what we were doing, then you would just get even more dirtier. don't you realize you people are terrible? #hitler
fullofit 10y ago
That's an attractive sentiment but the reality is more of a spectrum. Should every government official be required to wear a body cam and record every conversation they have? Should we be able to track the position of every soldier in real time? What are the implications of every negotiation being public?
- tehwalrus 10y ago
  > Should we be able to track the position of every soldier in real time? No, but that's not what the article is about. There's an important difference between laws and orders/realtime tactical information.
  - fullofit 10y ago
    The article concludes that secrecy is necessary but requires a process with more checks and balances.
  - cryoshon 10y ago
    excellent catch, the conflation of laws and policies with tactical information is a standard trick in the disinformation/propaganda/useful idiot tact of minimizing when our government goes hog wild without our permission.
- mtgx 10y ago
  Everything is a spectrum. Such comments obviously refer to the fact that the U.S. gov is far from having the necessary level of transparency, despite Obama's promises to make his administration "the most transparent in history" (everyone remember that one? I'm sure he's still having a good laugh about it every now and then.)
- wyager 10y ago
  There's a huge difference between keeping some amount of critical information (like the specifics of current military deployments) secret versus keeping laws and court proceedings secret. There is no reasonable justification for the latter.
- heisenbit 10y ago
  No, not all needs to be public. Particularly negotiations while they happen need some privacy otherwise there is a risk they degenerate to a series of individual win-loose battles when a bundle of compromises would yield a win-win. But one needs to take a look at the impact the IT industry had on concentration of knowledge and power. A lot of things used to take more people and was so subject to more checks and less privacy. Today these things can be kept perfectly private. Right now due to less than perfectly implemented systems once in a while a door to a cache of "private" information is opened. These caches contain a mixture of stuff that should have been private and stuff that really should have been published a long time ago even if somewhat embarrassing. These leaks are destructive in the sense that they undermine the sense of privacy in areas where this is vital and also undermine the trust as it becomes clear too much is kept under the rug. It also opens the door to all sort of conspiracy pushers. It is highly problematic that the society seems to be reliant on the leaks to stay informed. Sharing information makes one vulnerable. It is also vital to connect. Governments need to decide on how they relate to their people. Actually the people need to tell the governments what is acceptable and what not...
- gaius 10y ago
  Should every government official be required to wear a body cam and record every conversation they have? Yes, and we have the technology now to stream it live. If someone feels entitled to spend my money and tell me how to live, it's the least they can do.
  - fullofit 10y ago
    But who? Librarians? Public university employees? How much transparency do you want?
    - gaius 10y ago
      Elected politicians and their direct reports.
- white-flame 10y ago
  A public servant is beholden to the public. So yeah, there should be no problem with their official representational capacities being 100% recorded, in-office discussions and all. Soldiers, as far as I understand, are not technically public servants. But correct me if I'm wrong.

grzm 10y ago

I'm glad to see discussions like this that are looking beyond the election about how we can move forward to increase transparency, working to hopefully regain some of the public's trust. An open question is whether we as a nation can keep pressure on the officials to get changes made. Difficult to do in the best of circumstances and even more so in the current state of polarization and divisiveness.

chrisdotcode 10y ago
What compounds this problem is that nobody cares about anything regarding this until they're locked up themselves. And even then, since it's just one changed mind, it's hard to move the incredibly strong tide of the government. How can we get the populous to care, but more than just a 30 second "oh that's not good" then resuming with their normal life?
TheGirondin 10y ago
It's looking like we are going to have to wait at least 8 before making progress on transparency in the US.
- grzm 10y ago
  I'm trying to figure out a way to address your comment in a constructive way. Does "wait at least 8" imply doing nothing now? That's how I read your comment, so please correct me if I'm wrong. I don't think there's a quick and easy solution. Everything's not going to be changed overnight--even if we all agreed on what the final state should look like. I'd like to think we can figure out ways to move forward in the direction we generally want to go, knowing that it'll take a while to get there. I do think only waiting is going to make things worse, harder to change as time goes by and the current situation becomes even more entrenched. There are multiple projects here, too. One is to increase transparency. Another is to identify common goals that have support across the divides we currently see. I'm sure there are others. Identifying common goals and building support is something I don't think we need to wait for. I apologize if I've put words in your mouth. Please correct me if I have. Edit: Added thoughts on actions to start now.
10y ago

wyldfire 10y ago

> When President Obama issued procedures and standards for using lethal force against suspected terrorists overseas, agency officials were bound to follow them. It's a perpetual, boundless war fought on our behalf. It's too bad Congress can't find a way to permit this activity in some limited fashion without just ignoring it (congress please RTFM: Article I, Section 8, Clause 11). This sets a horrible precedent for future presidents. We have ceded enormous discretion to the executive here. It seems prudent to have a ton of oversight and disclosure surrounding programs that allow for execution of individuals, regardless of where they live. Footnote: Rep. Lincoln (regarding conflict w/Mexico over disputed Texas): "The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."

mtgx 10y ago
This. People need to start demanding that all "strikes" against a country are first approved by Congress and for a limited period of time. The president should only retain the power to attack if there is an imminent threat that can be stopped by a quick response from the president. Even then, it should still be evaluated as soon as possible by Congress to see whether the president's "emergency response" was warranted or not. And by imminent, I mean the actual dictionary definition of imminent, not "Obamalang" imminent: > In addition to conducting airstrikes against Isis is Syria on Tuesday, the Obama administration also announced it had also targeted the “Khorasan Group”, a separate al-Qaida-linked terrorist organization. They justified it by claiming that the group was plotting an “imminent” attack on the US. Before last week, hardly anyone had heard of the Khorasan Group (in fact, even their name was classified), so it’s difficult to judge from public information just how threatening their alleged plot really was. But when you add in the administration’s definition of “imminent,” it becomes impossible. > Take, for example, this definition from a Justice Department white paper, which was leaked last year, intended to justify the killing of Americans overseas: > [A]n “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future. > To translate: “imminent” can mean a lot of things … including “not imminent”. https://www.techdirt.com/articles/20140924/17360528630/obama-administration-learns-if-you-redefine-every-word-dictionary-you-can-get-away-with-just-about-anything.shtml https://www.techdirt.com/articles/20140924/17360528630/obama...

deleted 10y ago

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M_Grey 10y ago

Two quotes from Eisenhower spring to mind. "It is part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusionary [sic] foundation of complete unreliability and renders among our political leaders almost a greater fear of peace than is their fear of war." (D.W. Eisenhower) "In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power exists and will persist." (D.W. Eisenhower) He was absolutely right, and I'm not sure that there's a realistic way out of the decades-deep hole we've been digging for ourselves. Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack, it seems hopeless.

wyldfire 10y ago
> Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack I agree but we must admit that it's terribly difficult when faced with terrorism to consider the proposition that doing nothing might be better than any action. Harder still is to make the claim in front of politicians who might consider that an opportunity to spin it into a weakness rather than a strength.
- AstralStorm 10y ago
  And thus terrorists win long term. Not by actually achieving what they want, but by paralysing their enemy and affecting them negatively. One would think people in "the land of the free" wouldn't act like either scared rabbits or enraged bull.
chishaku 10y ago
> I'm not sure that there's a realistic way out of the decades-deep hole I'm not either. I think broad-stroke laws reversing much of the damage are necessary. We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid. Regarding government documents in general, I think everything should be published by default. Instead of FOIA applications to have information published, agencies should be applying to keep their documents secret.

fit2rule 10y ago

The corruption of government begins with its secrets. A truly free people keep no secrets.

intrasight 10y ago
Well said. Although I only agree within the domestic context. Some countries make all their citizens tax returns public - that's a good kind of openness. However, when dealing with foreign countries there will often be a need for secrecy.
- ChoHag 10y ago
  In order to continue to deal with foreign countries as they have hitherto been dealt, there will often be a need for secrecy.

Spooky23 10y ago

It's even worse than having secret law -- it's secret analysis and interpretation of law. In some cases, if a statute says: "All pens must be blue", and the administration's attorneys study the statute and determine "When the congress said that pens must be blue, we understand that they meant to say black", and they then make that determination secret. The outcome isn't secret law, but secret meta-law.

MereInterest 10y ago
Unfortunately, this isn't new, either, and happens by the courts as well. I still cannot comprehend how the draft does not violate the 13th Amendment. Reading the court cases, the argument seems to be "We know that involuntary servitude is forbidden, but surely they didn't mean this kind of involuntary servitude."

DannyB2 10y ago

Secret Laws Secret Interpretations of Laws Secret Courts Secret Warrants Secret Court Orders Secret Arrests Secret Trials Secret Evidence (not made available to the defense) Secret Convictions Secret Prisons Secret "enhanced interrogation" programs Gee, it sounds like we've become everything we were fighting against in the previous century. But it keeps the money flowing. Next after the military industrial complex is the for-profit prisons. Vacant cells mean lower revenue and thus degrade profits, executive bonuses and shareholder value. Our education system needs to be geared to produce just enough inmates to occupy the for profit prisons, and enough productive workers to pay for both the for profit prisons and military industrial complex.

digi_owl 10y ago
Authoritarianism comes in many guises...
marcoperaza 10y ago
Secret trials and convictions? Don't exist in the US. Also, evidence cannot be used in court but withheld from defense attorneys. You're just making this stuff up. There are no secret prisons either. If you're talking about battlefield prisons for captured combatants, that's obviously different than the criminal justice system, and is par for the course in warfare. You can definitely have secret warrants. How could you not? Imagine if the cops had to publish the details of wiretaps. What use would they be? Nevertheless, the secrecy must be justified and approved by a judge every few months.
- groovy2shoes 10y ago
  Frankly, if a warrant would be useless if it weren't kept secret, I'd rather there be no warrant at all. And yes, I'm prepared to accept the consequences of that.
  - marcoperaza 10y ago
    You can only entertain such ridiculous thoughts because you live in a society that's not totally controlled by criminals. Try living in Mexico or Colombia and I bet you'd have a different opinion.

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MichaelMoser123 10y ago

What is the point of a law if it is kept secret? Doesn't secrecy defeat the purpose of the concept of having laws and of due process? How did they establish the concept of secret laws and how are these laws passed if not in secret?

MichaelMoser123 10y ago
In socialist countries there were many unwritten regulations/instructions - what is allowed/verboten in politics? The law would not state that explicitly because the policy of the party could change suddenly (like with the Molotov - Ribbentrop packt) and the law is not that easily adjusted. Therefore behavior was regulated by taboos - don't say anything that is not stated by the state media, better don't say anything because politics keep changing. I wonder if secret laws are a move in the same direction.

throw2016 10y ago

The problem is larger than secret laws. Once the culture of paying lip service to fundamental principles is set within government it becomes systemic as has already happened in the US government. The danger then is a large number of individuals within government acquire a sense of self righteous purpose convinced of an existential threat that allows them to morally ride roughshod over the basic principles of the state, for instance to run surveillance systems. For them citizens become ignoramuses who have to be kept in the dark, so there is no scope for debate. And who would not protest so much if only they knew all this is just to keep them 'safe'. Of course its not. A shift from accountability towards secrecy is always about the accumulation and abuse of power. Unless they are prosecuted and held accountable in courts where their world view can be challenged in the open the culture will not change. It's important for citizens to nip this in the bud before its too late.

TheSpiceIsLife 10y ago
If, as you say, this has already happened in the US then it follows that it is too late to nip it in the bud. So where to from here?

emodendroket 10y ago

If this an option it's obvious why any administration would prefer to take it but it's an abdication of duty for Congress and the courts to do nothing about it.

Bartweiss 10y ago

"In this election year, as we honor our right to govern ourselves, those in power and those seeking it should affirm that a regime of secret law has no place in a democracy." This was a darkly amusing way to finish the article. Both major candidates have openly endorsed expanding government surveillance and reducing legal protections for privacy and access to law. There's no plausible election outcome that would scale back secret law.

boyaka 10y ago
The more people that vote third party, the more plausible it will become and the bigger the message is that's sent that we aren't happy.
- white-flame 10y ago
  Right. Everybody asks if they can vote "None of the above". That's exactly the message that a 3rd party vote sends. People need to go out and have their objection counted, instead of just bemoaning the major candidates and staying home or voting for one of them. While the two-party side effect of our voting system will likely ensure that a Dem or Rep will get in again, boosting the third parties just to hit magic 5%, 10%, 15% tiers will actually be the best use of a vote to try to change the political landscape going forward. There would be access to more funding, media, debates, and DC facilities for the 3rd parties. The 3rd parties also need to push for election process reform, to get rid of the 2-party effect. Some localities are already testing the waters in more progressive voting schemes. This is all especially true if you're not in a swing state. If your state is already blue or red, another blue or red vote is a 100% wasted vote. Remember, you're not voting for the president; you're voting for who your state is going to vote for president. If that's already decided by a large mass of card-carrying party line voters, or by extreme public sway, that determination has already been made. Use your vote elsewhere. We need creative destruction in the political process, and deconstructing or at least challenging the incumbent parties is the only civilized option I see. Too many people throw their hands up at Dem vs Rep, and think the only way to change that is violent revolution.
- JoeAltmaier 10y ago

titzer 10y ago

Secret law is no law at all. Law is a contract between a people and the government. Contracts where only one party has any knowledge are by definition not contracts. Instead, this body of secret law operates completely outside of public oversight, and generally grants the government powers that public, bonafide law would ban or tightly restrict. Secret law is _always_ a violation of the social contract, and we must reject it and punish actors in government who justify it, no matter the specious ends they pursue.

DannyB2 10y ago
The law is not a contract. It's a EULA. Shut up and click I AGREE already. :-)
pbhjpbhj 10y ago
I'm not defending (nor attacking) secret law but the obvious flaw to your argument from where I'm sitting is that if one has a representative democracy then secret laws can easily be a part of an open contract. We, the demos, can contract with our MPs (MEPs, Senators, etc.) to run the country in a way that they see as benefiting the demos to the greatest extent; we can contract with them to do just that. If then that beneficence includes hidden legislation there doesn't seem to be a democratic problem. It's like if you asked your plumber to "sort your heating out" and they installed rust inhibitor without your knowledge, it's still under contract and you instructed them to act. Of course you can insist on entirely open government. Personally I'm inclined to think that's going to lose out in some ways (inability to conduct covert investigations in to actions of criminals/businesses/states for example).

ttyltrful 10y ago

Can ignorance of a secret law be used as a defense?

mikecb 10y ago

Perhaps the United States has secret law because it's one of a very small set of jurisdictions (read: pretty much only) that subjects the most classified actions to a comprehensive and deeply integrated legal framework. For some interesting reading, check out Intelligence Oversight, a toolkit, by the Geneva Center for the Democratic Control of Armed Forces[1] [1] http://www.dcaf.ch/Publications/Overseeing-Intelligence-Services-A-Toolkit http://www.dcaf.ch/Publications/Overseeing-Intelligence-Serv...

puppetmaster3 10y ago

JFK http://tinyurl.com/zvg25wj http://tinyurl.com/zvg25wj

rayiner 10y ago

The article is ridiculous. Legal interpretations are only law when they have been adopted by a court. A private legal interpretation is not a "secret law." To the contrary, every organization of any substantial size has private interpretations of laws, and those interpretations are protected from disclosure by attorney-client privilege.

lucker 10y ago

'Secret law' is not law at all, and I consider it the duty of every American to expose and, if necessary, disobey it. Any legal professional participating in 'secret law' should be disbarred.

jwtadvice 10y ago

Some of the things I remember from this past administration: 1. Secret global and domestic surveillance. 2. Secret application of war powers. 3. Secret assassination programs. 4. Secret courts with secret warrants. 5. Secret torture programs. 6. Secret prison systems and secret "extraordinary" rendition. 7. Secret compulsion letters for secret military and intelligence efforts. 8. Secret deportations with a public relations face saying the opposite. 9. Secret sabotage programs. 10. Secret intelligence involvement in the production of US media. 11. Secret censorship of domestic protests. 12. Secret trade deals with secret foreign policy objectives. 13. Secret nuclear deals with historic US enemy states. 14. Secret transfers of money overseas. 15. Secret arms support overseas of groups in Syria. 16. Secret meeting in the Congress (the most of any president in the history of the country). 17. Secret interpretations of law. 18. Secret investigations of civil and human rights allegations.

gaius 10y ago

The word "privilege" quite literally means "private law".

SmokyBourbon 10y ago

The style of government (monarchy, dictatorship, democracy, communism) doesn't really matter. The size of government (how many things government does or doesn't do) doesn't really matter. It's the scale of government that matters. When the ratio of people to decision-makers becomes too high, the decision-makers stop fearing revolution and stop caring what the people think. Governments don't scale well. It's only a matter of time before we need to address this. We built a distributed system of 13 servers supporting 4 million users. A century later, we had 34 servers supporting 31 millions users. There was a major desync crisis causing us to lose 600,000 users so we moved most of the processes into a mainframe turning the now 36 servers into little more than proxy servers. This kind of worked for a while. A century and a half later we have 50 proxy servers supporting 320 millions users. The mainframe is barely responding to requests. Half of the engineers want to upgrade the mainframe. The other half want to move some of the processes back to the proxy servers. Instead, we should be moving the app to the cloud. The problem is nobody knows what an AWS for government would look like.

white-flame 10y ago

This part absolutely disgusts me: Even when they have access, lawmakers often fail to push back against interpretations that go too far. After all, they have little incentive to take on the national security establishment when their constituents are not even aware that a problem exists. As a representative, you are there to uphold the constitution and deal with all the issues that would otherwise swamp the general public. You are not micromanaged by the people. Your general representation has been elected. We do not elect you to sit on your butt and wait for "incentives". DO YOUR JOB.

alanh 10y ago

The government considers transparency a flaw and attempts to route around it.