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From the article: "Judge Ellis said: "For Wikimedia to litigate the standing issue further, and for defendants to defend adequately in any further litigation, w

From the article: "Judge Ellis said: "For Wikimedia to litigate the standing issue further, and for defendants to defend adequately in any further litigation, would require the disclosure of protected state secrets, namely details about the Upstream surveillance program's operations. For the reasons that follow, therefore, the standing issue cannot be tried, or otherwise further litigated, without risking or requiring harmful disclosures of privileged state secrets, an outcome prohibited under binding Supreme Court and Fourth Circuit precedent." This is why whistleblowers are so important. The "state secrets" firewall means that the public has no ability to police government surveillance. It's a frustrating situation because intelligence agencies obviously do need to keep secrets while at the same time they can use this as justification to keep anything they want secret, even when there is no real national security concern with revealing the information.

HenryKissinger 7y ago
> The "state secrets" firewall means that the public has no ability to police government surveillance. The public can change the composition of the Congress, which has oversight and lawmaking authorities over domestic intelligence agencies.
- vkou 7y ago
  With the state secrets firewall, you have no idea whether or not you should change the composition of Congress.
- nimbius 7y ago
  id argue one cannot change the composition of congress. political propaganda is regulated through the big 3 media outlets, and is a one-way monologue reinforcing certain values and priorities. Congressional candidates respond only to the cash that is required to secure their elections, and thus their real constituency is comprised almost entirely of corporate interests.
  - aphextim 7y ago
    >id argue one cannot change the composition of congress. I hope that if term limits ever become a thing, it would only take a few elections of well informed voters to start making the change. I think that congress is supposed to be a fluid body of people that are supposed to represent the population, and change as the population's interests change. What we have now is career politicians making it to congress, and then milking it with all the donations, re election groups and lobby groups funneling them money making it very hard to actually enact any real change. Even if one or two people make it to congress that are young and full of ideas/change they cannot get anything done because they are vastly outnumbered by the old fogies still writing policies like the 1950's.
    - harikb 7y ago
      While terms limits solve one problem, it creates a far bigger one. Most well meaning “good people” have to sacrifice their career in order to serve in Politics. Yes, it is a career. But what is wrong with it? What do you think they should do with rest of their life? Moreover, it takes more than one term to achieve any meaningful change. Things like Obamacare didn’t just start with Obama. Major changes takes 10+ years. Congress/senators should be under better scrutiny, yes. Don’t let them become corrupt, prevent insider trading etc. but terms limits is not the solution to this problem. In my opinion I think term limit would rule out “poor people” from ever trying to run for office.
      - derivagral 7y ago
        Your point is valid here, but I'll mention that the type of people you feel would possibly be excluded are very likely already excluded by the current system.
- aaomidi 7y ago
  The public who cares about this have no say in all of the other seats of the house.
- chishaku 7y ago
  Why is this comment being downvoted? What alternatives are there other than achieving meaningful representation in government e.g. Congress?
  - mindslight 7y ago
    It's being downvoted because it's utterly fallacious. The democratic process has been captured by mass media and turned into a simulation of choosing change. Divisive bikesheds are played up to the max, while the fundamental substantive issues like this are off the discussion table. Any candidate that dares to break rank and bring them up gets labeled "fringe" and memory-holed by the maintream media. The ultimate alternative is going to be voting from the rooftops, when we've finally become fed up with the results of their corruption.
    - emn13 7y ago
      Furthermore; democracy relies on there being meaningful communication and an at least somewhat unbiased sampling of popular opinion. So firstly on meaningful communication: Under the guise of freedom of speech nowadays falsehoods, and even more critically just plain noise is pervasive; the freedom to shout nonsense is inhibiting the freedom to hear a reasonable and diverse set of opinions and facts. Most (loud and repeated) messages are by corporations and other groups too; because that channel simply has more resources - and that's unfortunate not because corporations are intrinsically evil (which they aren't), but because people are intrinsically social and groups of people often quite the reverse; so that corporate "speech" in the form of campaign finance typically is plainly corruption - albeit legal, even if most of its constituent individuals are reasonably moral people. In short; we know the evils of censorship and have robust traditions to at least oppose that; but we do not have similar traditions vs. overload and deception, and indeed our (entirely reasonable) protections against censorship make us more vulnerable to these rising problems. Is there a solution? Who knows; but any solution certainly is not on the public radar yet let alone nearby. Secondly on democracy: It's pretty plausible that democracies undeniable success in the past centuries may have benefited in part be due to the uncanny wisdom of the crowds. But that effect has risks and flaws (a quick google finds e.g. https://www.bbc.com/future/article/20140708-when-crowd-wisdom-goes-wrong https://www.bbc.com/future/article/20140708-when-crowd-wisdo... discussing some of those). And as it so happens, simply because we communicate so much nowadays, we're always bombarded with what which constituency will vote / should vote / thinks / etc; in ways that would have been simply inconceivable a century ago. And exactly that kind of information turns out to critically undermine the wisdom of the crowds. Polling (and in general political commentary not on the substance but on the shifting political winds themselves) is poison to democracy. The more people know about how others vote and how they should vote... the worse they vote collectively. Democracy's decision making advantage is being eroded without any malice or election manipulation required; it's an entirely natural social process that indeed may well be the ultimate root cause of the polarization of US politics. We're not going to get congress to do much good until we can get democracy to work again; and we won't be able to do that until we have some way to address these fundamental, underlying weaknesses we currently face. Almost by definition if you can get one party on board, there will be another that's opposed - and a cacophony of voices shouting factually inconsistent statements, lies, disagreements, lobbying to the point that no unbiased sampling of voters will ever exist. So whether people have thought about it or not; everybody realizes that grand benign national changes are utterly beyond the divided, impotent congress that suggesting they do more then keep the lights on (and even that is pushing it nowadays!) is so naive as to come across as almost insincere.
- jessaustin 7y ago
  Congress should have oversight over TLAs, but unfortunately the converse is the case. https://www.theguardian.com/commentisfree/2014/jul/31/cia-director-john-brennan-lied-senate https://www.theguardian.com/commentisfree/2014/jul/31/cia-di...
- rdiddly 7y ago
  Ideally and in my fondest wishes, you're right. In practice however, I think it has become a game only people with vast sums of money can play.
- auiya 7y ago
  > The public can change the composition of the Congress In theory. In practice, Congress members are not selected by a public electorate, but rather by careful gerrymandering practices paid for by corporate interests designed to benefit themselves financially. In the USA, you have no choice of your elected leaders.
  - coliveira 7y ago
    Correct, technology and money make it possible for politicians to select voters, instead of voters selecting politicians.
- coliveira 7y ago
  The result of Citizens United was the death blow on American democracy. First, companies can put as much money as they want on elections, second, rich people control companies, and third, foreign countries also control companies. Put this together and the USA has no functioning democracy anymore, it is at the whims of billionaires and/or foreign powers.
  - posterboy 7y ago
    There are many things more important than money, so either money doesn't break the system, or if it does, it's at least countable and potentially to be held accountable. It just makes sense to make that explicit.
  - refurb 7y ago
    If money is so powerful, why is Michael Bloomberg not going to get the democratic nomination?
    - rplst8 7y ago
      Money, and the threat of money are both factors. There are bigger fish than Bloomberg.
    - Nasrudith 7y ago
      Really influence is a commodity which can and is bought and sold (see enorsements) and money may be used to purchase it but the two aren't identical. You can't just compare budgets and pick a winner unless both have comparable strategies and influence. It brings to mind a quixotic approach of trying to value influence quantitatively. Like trying to figure out how much value could be extracted from a celebrity endorsement.
    - coliveira 7y ago
      Because Bloomberg is not the only one with a lot of money trying to get the presidency.
luizfzs 7y ago
That's one thing that Snowden mentions in his book. You cannot have a fair trial if you are an whistleblower, since that would include revealing/acknowledging the existence of such programs, thing they don't want to do.
- HenryKissinger 7y ago
  Being a whistleblower is not a crime. Whistleblowing is regulated by law. Government agencies have internal processes for people who want to blow the whistle on conduct they may deem illegal or unethical, and it is perfectly safe to do so. Edward Snowden did not go through the proper channels. If he had, doing so would not have led to his prosecution. He broke into computer systems he did not have the right to access, copied information, fled the United States, and illegally released the information he stole about government programs that were in no way illegal, or unconstitutional. Snowden broke the Espionage Act of 1917, and deserves due process.
  - criddell 7y ago
    > programs that were in no way illegal, or unconstitutional I noticed you didn't say unethical.
    - colejohnson66 7y ago
      It doesn’t really matter. It’s wrong. The Fourth Amendment is a thing regardless of what the government does or says.
      - m-p-3 7y ago
        The government is responsible of applying the Constitution. If they don't apply it, then the Constitution doesn't really matter.
  - lettergram 7y ago
    > He broke into computer systems he did not have the right to access, copied information, fled the United States, and illegally released the information he stole about government programs that were in no way illegal or unconstitutional. Ugh he didn’t break in, he had access. Also if you know anything about his case or related cases, you’d also know the proper channels don’t lead anywhere. There’s a great frontline documentary called “United States of secrets” Even the oversight committees aren’t privy to the full details and arguably they are where the proper channels should lead. There’s heads of agencies lying to Congress and the Senate about what is happening. The judiciary can’t rule on constitutionality.... which is part of its job. The reality is, whistleblowing the way Snowden did was the only way to put evidence in the public, such that the judiciary And public can make a decision.
adam12 7y ago
Isn't this the definition of a deep state? Why do people think deep state is a conspiracy theory?
mrandish 7y ago
> It's a frustrating situation because intelligence agencies obviously do need to keep secrets while at the same time they can use this as justification to keep anything they want secret, even when there is no real national security concern with revealing the information. I agree and think the way to improve this is to codify into the relevant laws that: 1. If the government claims "state secrets" they have a burden of proof to demonstrate a reasonable probability of specific and tangible harm actually occurring. 2. The judge must evaluate whether the secrecy is justified using a 'balance of harms' weighting that considering the degree and probability of harm to the other party, the public and the constitution. 3. In cases where the judge determines a state secrets exception is justified, the other party may propose remedies that allow the case to proceed while mitigating the harm. The judge may appoint a special master to determine if mitigation is possible. 4. The government must demonstrate a reasonable probability that the information which would be publicly disclosed isn't already known to or assumed by the specific target(s) they are operating against. The last point is key. It means if the justification for the state secrets exception is to preserve spying against foreign powers and/or terrorists, the govt must show that the relevant foreign powers and terrorists don't already know (or assume) the secret info anyway. For example, Russia and China certainly know that the NSA is doing stuff like Upstream 'full take' because they do it too. We also already know that terrorists already assume that every form of electronic communication can be tapped. Thus, the only people who don't know the "secret" aren't the bad guys but the general public who aren't the supposed target of this anyway (because these spying programs aren't legally supposed to be used for criminal investigation). I think much of the time, the reason the govt wants to keep these things secret isn't to keep it from the bad guys but rather to keep the voters from finding out and pushing congress and the courts to actually do their job and stop unconstitutional programs.
- whoopdedo 7y ago
  We have FISA courts which allow the government to file charges against a private individual in a way that protects state secrets. Why are citizens not allowed to use these same FISA courts to file suit against the government? With properly authorized attorneys representing both sides cases involving state secrets can be argued. Not allowing citizens to bring cases to these courts is to create two forms of law: one for the people and another sort of law only available to the government to be used against the people. Certainly there must be some standard that says the law must be available to all people or else it isn't justice.
mattrp 7y ago
Congress could rule that the copying/filtering method is illegal and that Henning’s method of mirroring is the only acceptable practice. Then we don’t care so much about the specific means. I’m not a huge fan of ombudsman/czar positions but I think it would make sense to have some sort of privacy advocate within the executive and maybe even a house committee on the topic. It’s abundantly clear at this point that when it comes online communications we are no closer today to addressing issues of privacy, encryption, online free speech, than we were thirty years ago when the battles over clipper were fought.
- brokenmachine 7y ago
  What's Henning’s method of mirroring? Couldn't find it with a quick google.
- posterboy 7y ago
  The GA probably has the power to bring up such a charge, but they don't need to do it within this case. Then again, in practice they probably don't, if they are like the German General Staatsanwalt bound by orders and thus see no evidence for any wrong doing.
hammock 7y ago
>they can use this as justification to keep anything they want secret, even when there is no real national security concern with revealing the information. Aren't these secrets revealed to the judge, who then decides if the intel agency is justified in state secrets defense? At least that is a check and balance.
- brokenmachine 7y ago
  Even if this does happen, a judge would (justifiably) be heavily inclined to take the advice of the intelligence community on whether or not the secrecy rating is warranted.
SkyBelow 7y ago
>It's a frustrating situation because intelligence agencies obviously do need to keep secrets They have abused the power to such an extent I think it reasonable they be stripped of it. It is like taking away a person's rights to own a gun after they commit a violent crime with one. Regardless of what arguments can be made that they need one, their past abuse means the need is now completely ignored.
- stoicShell 7y ago
  The limit is that you have actual secrets to protect, whether codes or names. You don't want these public because everyone could destroy you then. Secrets are a necessary evil. Managing secrecy as a function of some more or less independent entity — three-letter agency, direct governmental body, army... — is a balancing act, to put it mildly. Ever since the dawn of time, and periodically throughout history, you hear this tension between the visible power (gov) and the hidden figures ("deep state", when some independent agency grabs too much power, and they all do, that's how they 'die' and get reformed historically). This is one of the oldest and hardest problem in managing a 'country', a vast group of people, in the face of potentially hostile foreign powers and nefarious actors in general (including, and sometimes especially, within). I feel our epoch (with internet, mobile, 24/7 on, hyperbuzz, etc) is vastly increasing the complexity and difficulty of this topic. It's likely to make those in charge of secrets paranoid, with reason, even assuming the best of intents. TL;DR: wish it were as simple as that.
  - tialaramex 7y ago
    It's not clear that secrets are a necessary evil. They are, however, greatly desired by exactly the kind of people who definitely shouldn't be allowed them. So that's a bad sign. Inappropriate reliance upon secrets is a recurrent security design mistake. Remember passwords? Well not so much remember, we still have passwords, and they're still terrible. Compare a FIDO Security Key. No secrets, much better. If I'm wrong and some secrets are truly necessary we're still best served by restricting ourselves to just those secrets and not creating a Matryoshka doll of secrets kept for their own sake and little more.
Iv 7y ago
You know what I find the most frustrating? The totally illegitimate laws that allow these state secrets to exist are 100% public. Most of Snowden's revelations could be infer in the text of laws stating what the NSA can do. I think there is the mentality that progress depends on ~~superheroes~~ whistle-blowers whereas I think that a sane and functioning network of privacy defense non-profits and appropriate public education could have prevented this situation to begin with.
- saagarjha 7y ago
  > illegitimate laws Now there’s an oxymoron.
  - Iv 7y ago
    It is a very sad democracy when you confuse legitimacy and legality. Slavery, apartheid, death camps were legal. Let me sing you the song of my people. Once upon a time, a french government surrendered to the German invader and changed form to stop being a republic. A colonel (de Gaulle) decided to stop obeying their orders, claiming he was a servant of the French republic, and claiming it was now alive in a government in exile in London and never surrendered. The legal mainland non-republican government declared him a traitor and his supporters terrorists. They were serious about that and killed many of them. At the end of the war, de Gaulle won and declared the mainland government "nul et non avenu" (void and never happened) which cancelled all the legal acts it took. People who during all that time followed the rule of the law were considered traitors to the nation, especially if they (as the law mandated it) denounced Jews or people helping them to German authorities. This is what we are taught in history class: following the law is not enough. You also have to think further than that. In some cases, the right thing to do is illegal.
    - saagarjha 7y ago
      Legitimacy is the same as legality, by definition. Neither of them have anything to do with what is right.
      - 7y ago
soulofmischief 7y ago
If the state can keep secrets from me, I can keep secrets from the state. You'll pry my encryption from my cold, dead hands.
zAy0LfpBZLC8mAC 7y ago
> It's a frustrating situation because intelligence agencies obviously do need to keep secrets Or do they? I mean, it's not that there can not be advantages to doing so, but then the same can be said about torture, about killing "dangerous" people without a trial, about censorship, ..., or in short: There can be advantages to any of the things that authoritarians like (as long as they themselves aren't the target, obviously). But still, we have recognized that we are better off as a society if we make all those things illegal, because the good that comes from them is outweighed by far by the bad. Maybe we should come to that same conclusion about "state secrets"? Maybe we should realize that they are inherently incompatible with democracy, and that having them damages democracy so much that we would be better off accepting the risks of not having "state secrets"? Or, to at least reconsider how far they can go/how they can be used? Like, I dunno, maybe you can have state secrets, but not for longer than three years, and you can not convict someone based on secrets? I don't claim to know what the right balance would be, just throwing out random ideas, but my point is that it seems to me that the damage done by the concept of state secrets warrants reconsidering whether they are actually worth it.
SauciestGNU 7y ago
Also worth mentioning that Judge TS Ellis III is the same activist judge who gave Paul Manafort a ridiculously lenient sentence due to living "an otherwise blameless life." This is a judge whose jurisprudence should probably not be taken seriously.

HenryKissinger 7y ago

> The "state secrets" firewall means that the public has no ability to police government surveillance. The public can change the composition of the Congress, which has oversight and lawmaking authorities over domestic intelligence agencies.

vkou 7y ago
With the state secrets firewall, you have no idea whether or not you should change the composition of Congress.
nimbius 7y ago
id argue one cannot change the composition of congress. political propaganda is regulated through the big 3 media outlets, and is a one-way monologue reinforcing certain values and priorities. Congressional candidates respond only to the cash that is required to secure their elections, and thus their real constituency is comprised almost entirely of corporate interests.
- aphextim 7y ago
  >id argue one cannot change the composition of congress. I hope that if term limits ever become a thing, it would only take a few elections of well informed voters to start making the change. I think that congress is supposed to be a fluid body of people that are supposed to represent the population, and change as the population's interests change. What we have now is career politicians making it to congress, and then milking it with all the donations, re election groups and lobby groups funneling them money making it very hard to actually enact any real change. Even if one or two people make it to congress that are young and full of ideas/change they cannot get anything done because they are vastly outnumbered by the old fogies still writing policies like the 1950's.
  - harikb 7y ago
    While terms limits solve one problem, it creates a far bigger one. Most well meaning “good people” have to sacrifice their career in order to serve in Politics. Yes, it is a career. But what is wrong with it? What do you think they should do with rest of their life? Moreover, it takes more than one term to achieve any meaningful change. Things like Obamacare didn’t just start with Obama. Major changes takes 10+ years. Congress/senators should be under better scrutiny, yes. Don’t let them become corrupt, prevent insider trading etc. but terms limits is not the solution to this problem. In my opinion I think term limit would rule out “poor people” from ever trying to run for office.
    - derivagral 7y ago
      Your point is valid here, but I'll mention that the type of people you feel would possibly be excluded are very likely already excluded by the current system.
aaomidi 7y ago
The public who cares about this have no say in all of the other seats of the house.
chishaku 7y ago
Why is this comment being downvoted? What alternatives are there other than achieving meaningful representation in government e.g. Congress?
- mindslight 7y ago
  It's being downvoted because it's utterly fallacious. The democratic process has been captured by mass media and turned into a simulation of choosing change. Divisive bikesheds are played up to the max, while the fundamental substantive issues like this are off the discussion table. Any candidate that dares to break rank and bring them up gets labeled "fringe" and memory-holed by the maintream media. The ultimate alternative is going to be voting from the rooftops, when we've finally become fed up with the results of their corruption.
  - emn13 7y ago
    Furthermore; democracy relies on there being meaningful communication and an at least somewhat unbiased sampling of popular opinion. So firstly on meaningful communication: Under the guise of freedom of speech nowadays falsehoods, and even more critically just plain noise is pervasive; the freedom to shout nonsense is inhibiting the freedom to hear a reasonable and diverse set of opinions and facts. Most (loud and repeated) messages are by corporations and other groups too; because that channel simply has more resources - and that's unfortunate not because corporations are intrinsically evil (which they aren't), but because people are intrinsically social and groups of people often quite the reverse; so that corporate "speech" in the form of campaign finance typically is plainly corruption - albeit legal, even if most of its constituent individuals are reasonably moral people. In short; we know the evils of censorship and have robust traditions to at least oppose that; but we do not have similar traditions vs. overload and deception, and indeed our (entirely reasonable) protections against censorship make us more vulnerable to these rising problems. Is there a solution? Who knows; but any solution certainly is not on the public radar yet let alone nearby. Secondly on democracy: It's pretty plausible that democracies undeniable success in the past centuries may have benefited in part be due to the uncanny wisdom of the crowds. But that effect has risks and flaws (a quick google finds e.g. https://www.bbc.com/future/article/20140708-when-crowd-wisdom-goes-wrong https://www.bbc.com/future/article/20140708-when-crowd-wisdo... discussing some of those). And as it so happens, simply because we communicate so much nowadays, we're always bombarded with what which constituency will vote / should vote / thinks / etc; in ways that would have been simply inconceivable a century ago. And exactly that kind of information turns out to critically undermine the wisdom of the crowds. Polling (and in general political commentary not on the substance but on the shifting political winds themselves) is poison to democracy. The more people know about how others vote and how they should vote... the worse they vote collectively. Democracy's decision making advantage is being eroded without any malice or election manipulation required; it's an entirely natural social process that indeed may well be the ultimate root cause of the polarization of US politics. We're not going to get congress to do much good until we can get democracy to work again; and we won't be able to do that until we have some way to address these fundamental, underlying weaknesses we currently face. Almost by definition if you can get one party on board, there will be another that's opposed - and a cacophony of voices shouting factually inconsistent statements, lies, disagreements, lobbying to the point that no unbiased sampling of voters will ever exist. So whether people have thought about it or not; everybody realizes that grand benign national changes are utterly beyond the divided, impotent congress that suggesting they do more then keep the lights on (and even that is pushing it nowadays!) is so naive as to come across as almost insincere.
jessaustin 7y ago
Congress should have oversight over TLAs, but unfortunately the converse is the case. https://www.theguardian.com/commentisfree/2014/jul/31/cia-director-john-brennan-lied-senate https://www.theguardian.com/commentisfree/2014/jul/31/cia-di...
rdiddly 7y ago
Ideally and in my fondest wishes, you're right. In practice however, I think it has become a game only people with vast sums of money can play.
auiya 7y ago
> The public can change the composition of the Congress In theory. In practice, Congress members are not selected by a public electorate, but rather by careful gerrymandering practices paid for by corporate interests designed to benefit themselves financially. In the USA, you have no choice of your elected leaders.
- coliveira 7y ago
  Correct, technology and money make it possible for politicians to select voters, instead of voters selecting politicians.
coliveira 7y ago
The result of Citizens United was the death blow on American democracy. First, companies can put as much money as they want on elections, second, rich people control companies, and third, foreign countries also control companies. Put this together and the USA has no functioning democracy anymore, it is at the whims of billionaires and/or foreign powers.
- posterboy 7y ago
  There are many things more important than money, so either money doesn't break the system, or if it does, it's at least countable and potentially to be held accountable. It just makes sense to make that explicit.
- refurb 7y ago
  If money is so powerful, why is Michael Bloomberg not going to get the democratic nomination?
  - rplst8 7y ago
    Money, and the threat of money are both factors. There are bigger fish than Bloomberg.
  - Nasrudith 7y ago
    Really influence is a commodity which can and is bought and sold (see enorsements) and money may be used to purchase it but the two aren't identical. You can't just compare budgets and pick a winner unless both have comparable strategies and influence. It brings to mind a quixotic approach of trying to value influence quantitatively. Like trying to figure out how much value could be extracted from a celebrity endorsement.
  - coliveira 7y ago
    Because Bloomberg is not the only one with a lot of money trying to get the presidency.

luizfzs 7y ago

That's one thing that Snowden mentions in his book. You cannot have a fair trial if you are an whistleblower, since that would include revealing/acknowledging the existence of such programs, thing they don't want to do.

HenryKissinger 7y ago
Being a whistleblower is not a crime. Whistleblowing is regulated by law. Government agencies have internal processes for people who want to blow the whistle on conduct they may deem illegal or unethical, and it is perfectly safe to do so. Edward Snowden did not go through the proper channels. If he had, doing so would not have led to his prosecution. He broke into computer systems he did not have the right to access, copied information, fled the United States, and illegally released the information he stole about government programs that were in no way illegal, or unconstitutional. Snowden broke the Espionage Act of 1917, and deserves due process.
- criddell 7y ago
  > programs that were in no way illegal, or unconstitutional I noticed you didn't say unethical.
  - colejohnson66 7y ago
    It doesn’t really matter. It’s wrong. The Fourth Amendment is a thing regardless of what the government does or says.
    - m-p-3 7y ago
      The government is responsible of applying the Constitution. If they don't apply it, then the Constitution doesn't really matter.
- lettergram 7y ago
  > He broke into computer systems he did not have the right to access, copied information, fled the United States, and illegally released the information he stole about government programs that were in no way illegal or unconstitutional. Ugh he didn’t break in, he had access. Also if you know anything about his case or related cases, you’d also know the proper channels don’t lead anywhere. There’s a great frontline documentary called “United States of secrets” Even the oversight committees aren’t privy to the full details and arguably they are where the proper channels should lead. There’s heads of agencies lying to Congress and the Senate about what is happening. The judiciary can’t rule on constitutionality.... which is part of its job. The reality is, whistleblowing the way Snowden did was the only way to put evidence in the public, such that the judiciary And public can make a decision.

adam12 7y ago

Isn't this the definition of a deep state? Why do people think deep state is a conspiracy theory?

mrandish 7y ago

> It's a frustrating situation because intelligence agencies obviously do need to keep secrets while at the same time they can use this as justification to keep anything they want secret, even when there is no real national security concern with revealing the information. I agree and think the way to improve this is to codify into the relevant laws that: 1. If the government claims "state secrets" they have a burden of proof to demonstrate a reasonable probability of specific and tangible harm actually occurring. 2. The judge must evaluate whether the secrecy is justified using a 'balance of harms' weighting that considering the degree and probability of harm to the other party, the public and the constitution. 3. In cases where the judge determines a state secrets exception is justified, the other party may propose remedies that allow the case to proceed while mitigating the harm. The judge may appoint a special master to determine if mitigation is possible. 4. The government must demonstrate a reasonable probability that the information which would be publicly disclosed isn't already known to or assumed by the specific target(s) they are operating against. The last point is key. It means if the justification for the state secrets exception is to preserve spying against foreign powers and/or terrorists, the govt must show that the relevant foreign powers and terrorists don't already know (or assume) the secret info anyway. For example, Russia and China certainly know that the NSA is doing stuff like Upstream 'full take' because they do it too. We also already know that terrorists already assume that every form of electronic communication can be tapped. Thus, the only people who don't know the "secret" aren't the bad guys but the general public who aren't the supposed target of this anyway (because these spying programs aren't legally supposed to be used for criminal investigation). I think much of the time, the reason the govt wants to keep these things secret isn't to keep it from the bad guys but rather to keep the voters from finding out and pushing congress and the courts to actually do their job and stop unconstitutional programs.

whoopdedo 7y ago
We have FISA courts which allow the government to file charges against a private individual in a way that protects state secrets. Why are citizens not allowed to use these same FISA courts to file suit against the government? With properly authorized attorneys representing both sides cases involving state secrets can be argued. Not allowing citizens to bring cases to these courts is to create two forms of law: one for the people and another sort of law only available to the government to be used against the people. Certainly there must be some standard that says the law must be available to all people or else it isn't justice.

mattrp 7y ago

Congress could rule that the copying/filtering method is illegal and that Henning’s method of mirroring is the only acceptable practice. Then we don’t care so much about the specific means. I’m not a huge fan of ombudsman/czar positions but I think it would make sense to have some sort of privacy advocate within the executive and maybe even a house committee on the topic. It’s abundantly clear at this point that when it comes online communications we are no closer today to addressing issues of privacy, encryption, online free speech, than we were thirty years ago when the battles over clipper were fought.

brokenmachine 7y ago
What's Henning’s method of mirroring? Couldn't find it with a quick google.
posterboy 7y ago
The GA probably has the power to bring up such a charge, but they don't need to do it within this case. Then again, in practice they probably don't, if they are like the German General Staatsanwalt bound by orders and thus see no evidence for any wrong doing.

hammock 7y ago

>they can use this as justification to keep anything they want secret, even when there is no real national security concern with revealing the information. Aren't these secrets revealed to the judge, who then decides if the intel agency is justified in state secrets defense? At least that is a check and balance.

brokenmachine 7y ago
Even if this does happen, a judge would (justifiably) be heavily inclined to take the advice of the intelligence community on whether or not the secrecy rating is warranted.

SkyBelow 7y ago

>It's a frustrating situation because intelligence agencies obviously do need to keep secrets They have abused the power to such an extent I think it reasonable they be stripped of it. It is like taking away a person's rights to own a gun after they commit a violent crime with one. Regardless of what arguments can be made that they need one, their past abuse means the need is now completely ignored.

stoicShell 7y ago
The limit is that you have actual secrets to protect, whether codes or names. You don't want these public because everyone could destroy you then. Secrets are a necessary evil. Managing secrecy as a function of some more or less independent entity — three-letter agency, direct governmental body, army... — is a balancing act, to put it mildly. Ever since the dawn of time, and periodically throughout history, you hear this tension between the visible power (gov) and the hidden figures ("deep state", when some independent agency grabs too much power, and they all do, that's how they 'die' and get reformed historically). This is one of the oldest and hardest problem in managing a 'country', a vast group of people, in the face of potentially hostile foreign powers and nefarious actors in general (including, and sometimes especially, within). I feel our epoch (with internet, mobile, 24/7 on, hyperbuzz, etc) is vastly increasing the complexity and difficulty of this topic. It's likely to make those in charge of secrets paranoid, with reason, even assuming the best of intents. TL;DR: wish it were as simple as that.
- tialaramex 7y ago
  It's not clear that secrets are a necessary evil. They are, however, greatly desired by exactly the kind of people who definitely shouldn't be allowed them. So that's a bad sign. Inappropriate reliance upon secrets is a recurrent security design mistake. Remember passwords? Well not so much remember, we still have passwords, and they're still terrible. Compare a FIDO Security Key. No secrets, much better. If I'm wrong and some secrets are truly necessary we're still best served by restricting ourselves to just those secrets and not creating a Matryoshka doll of secrets kept for their own sake and little more.

Iv 7y ago

You know what I find the most frustrating? The totally illegitimate laws that allow these state secrets to exist are 100% public. Most of Snowden's revelations could be infer in the text of laws stating what the NSA can do. I think there is the mentality that progress depends on ~~superheroes~~ whistle-blowers whereas I think that a sane and functioning network of privacy defense non-profits and appropriate public education could have prevented this situation to begin with.

saagarjha 7y ago
> illegitimate laws Now there’s an oxymoron.
- Iv 7y ago
  It is a very sad democracy when you confuse legitimacy and legality. Slavery, apartheid, death camps were legal. Let me sing you the song of my people. Once upon a time, a french government surrendered to the German invader and changed form to stop being a republic. A colonel (de Gaulle) decided to stop obeying their orders, claiming he was a servant of the French republic, and claiming it was now alive in a government in exile in London and never surrendered. The legal mainland non-republican government declared him a traitor and his supporters terrorists. They were serious about that and killed many of them. At the end of the war, de Gaulle won and declared the mainland government "nul et non avenu" (void and never happened) which cancelled all the legal acts it took. People who during all that time followed the rule of the law were considered traitors to the nation, especially if they (as the law mandated it) denounced Jews or people helping them to German authorities. This is what we are taught in history class: following the law is not enough. You also have to think further than that. In some cases, the right thing to do is illegal.
  - saagarjha 7y ago
    Legitimacy is the same as legality, by definition. Neither of them have anything to do with what is right.
    - 7y ago

soulofmischief 7y ago

If the state can keep secrets from me, I can keep secrets from the state. You'll pry my encryption from my cold, dead hands.

zAy0LfpBZLC8mAC 7y ago

> It's a frustrating situation because intelligence agencies obviously do need to keep secrets Or do they? I mean, it's not that there can not be advantages to doing so, but then the same can be said about torture, about killing "dangerous" people without a trial, about censorship, ..., or in short: There can be advantages to any of the things that authoritarians like (as long as they themselves aren't the target, obviously). But still, we have recognized that we are better off as a society if we make all those things illegal, because the good that comes from them is outweighed by far by the bad. Maybe we should come to that same conclusion about "state secrets"? Maybe we should realize that they are inherently incompatible with democracy, and that having them damages democracy so much that we would be better off accepting the risks of not having "state secrets"? Or, to at least reconsider how far they can go/how they can be used? Like, I dunno, maybe you can have state secrets, but not for longer than three years, and you can not convict someone based on secrets? I don't claim to know what the right balance would be, just throwing out random ideas, but my point is that it seems to me that the damage done by the concept of state secrets warrants reconsidering whether they are actually worth it.

SauciestGNU 7y ago

Also worth mentioning that Judge TS Ellis III is the same activist judge who gave Paul Manafort a ridiculously lenient sentence due to living "an otherwise blameless life." This is a judge whose jurisprudence should probably not be taken seriously.