27 ms·

U.S. court upholds dismissal of lawsuit against NSA on 'state secrets' grounds

246 points by commoner 5y ago

LatteLazy 5y ago
State secrets has long been the get out of jail free card from the US constitution
- java-man 5y ago
  And to cover up crime. [0] https://en.wikipedia.org/wiki/United_States_v._Reynolds https://en.wikipedia.org/wiki/United_States_v._Reynolds
- nickysielicki 5y ago
  Not that long: > While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases." - John Dean https://en.wikipedia.org/wiki/John_Dean https://en.wikipedia.org/wiki/John_Dean
sneak 5y ago
If the executive branch can classify things as sensitive to the national security, and there is a state secrets exception to trial, then how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? The programs in question here are also clearly not national security matters. They were made public, are illegal, and the security of the nation was not affected in any way. The whole house is built on a foundation of lies.
- artificialLimbs 5y ago
  >> If the executive branch can classify things as sensitive to the national security, and there is a state secrets exception to trial, then how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? This is the meat of the problem with pervasive surveillance. Until this matter is resolved in such a way that makes any surveillance without a warrant be deemed unconsitutional, the idea of 'freedom' is only a ghost in the U.S.
- xxpor 5y ago
  >how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? You have to remember, the default answer to "Can I sue the government?" is No. The only suits you're allowed to take to trial are ones the government has allowed themselves to be sued for. For example: https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act While I think the entire idea of sovereign immunity is bullshit, the chance of the doctrine being overturned is next to 0. So we have to live with it. The point is, you're kind of lucky to even get as far as getting this dismissed over state secrets. The real problem with the state secret doctrine is when the feds intervene in a suit between two private parties. https://fas.org/blogs/secrecy/2014/09/uani-state-secrets/ https://fas.org/blogs/secrecy/2014/09/uani-state-secrets/
  - einpoklum 5y ago
    I believe you're quoting an irrelevant rule. AFAICT, this was not a torts lawsuit. Wikimedia was not suing for damages, it asked the courts to declare certain government practices illegal and/or force the government to desist these practices.
- happythomist 5y ago
  The judiciary and executive are not on an equal footing. The judiciary is the weakest branch of government, and the legislature the strongest. These kinds of abuses must be addressed by Congress, not the courts.
  - AnimalMuppet 5y ago
    The legislature is supposed to be the strongest. But it's so busy infighting that more and more power falls to the executive, so that things actually get done.
KittenInABox 5y ago
Is my understanding correct that, essentially, you can violate people's constitutional rights and then if you're sued claim investigating the violation would be a national security threat and therefore you should continue to be allowed to violate people's rights without oversight?
- erellsworth 5y ago
  Sounds pretty accurate.
erellsworth 5y ago
We've investigated ourselves, and concluded that we did nothing wrong.
gego 5y ago
...why sue in the US? Wikimedia Germany would have been much better...
- xxpor 5y ago
  Who would they sue?
  - gego 5y ago
    The US Govt under Espionage and Computer Crime law (Germany ex officio), possibly breach of int treaties (FCN treaties, Germany) and ECHR for individual violations (individuals)...
    - luckylion 5y ago
      There's no way a higher German court would rule against the US government on a major issue.
      - gego 5y ago
        ...possibly... but the discovery phase, witness testimony and and and ... would have more effect than a simple secrecy clause in any us court...
        rtkwe 5y ago
        The US can and would just refuse to respond.
        ClumsyPilot 5y ago
        that would be telling in its own right
        rtkwe 5y ago
        Would it? The broad strokes of the spying is pretty well established at this point so I'm not sure what new is actually gained in this hypothetical.
waiseristy 5y ago
> ...dismissed for lack of standing. In particular, the government argued that we had not provided sufficient evidence of the government’s surveillance for the case to proceed. It also claimed that the case could not proceed because it would require the Court to consider information the government claims is protected by the state secrets privilege. In other words, the government contended that the case cannot be litigated without disclosing information about Upstream surveillance that would harm U.S. national security—and, accordingly, in its view, the entire case must be dismissed. The classic "you can't prove we did anything illegal, and if you did, that in itself would be illegal" defense. Fuck these people, seriously
literallyaduck 5y ago
There is no greater threat to our people than opaque government. Democracy and secrecy are mutually exclusive. We need you to vote on this issue but we will hide all the relevant facts.
- ethbr0 5y ago
  Democracy has and always will exist in balance with secrecy. In fact, the polarization we often decry is largely because of transparency. It's harder to nail someone to a cross on partisan radio if it's "the committee decided this" instead of "x voted y."
  - dane-pgp 5y ago
    Do you think committees would make better decisions if their members could lie about how they voted? You might "solve" the polarization problem by making it harder to know who to blame, but I don't think that would solve the root cause of people's frustrations.
    - int_19h 5y ago
      Committees would make decisions that are less affected by populist pandering, resulting in a more centrist policy overall, and less severe policy swings between different administrations. Whether such decisions are better or not depends on the specific circumstances and one's subjective perspective. Populism generally translates to more extreme politics, but sometimes more extreme is what you need to dig yourself out of a hole. Conversely, less pandering to popular opinion generally means more insider arrangements and other institutionalized corruption.
      - dane-pgp 5y ago
        It would be nice to think that committees would be freed from the pressures of democratic accountability and could finally make the enlightened decisions they had always been yearning for, but I don't think that is the most likely outcome. Instead you would likely see the dominant party passing extreme legislation on 51/49 majorities, with every politician being able to claim that actually they were a centrist and they voted against the legislation (and it must have been disloyal members of the other party that enabled the vote to pass). In fact, the veil of secrecy might even allow members of a minority party to claim that they are against some extreme policy, but actually collude with a faction from the majority party to narrowly pass it, either because it benefits the politicians themselves (at the expense of their voters) or because the extreme outcome would motivate their supporters to re-elect them.
autoliteInline 5y ago
It seems safe to me to assume that US government security is mostly to keep secrets from it's own citizens. Foreign intelligence agencies know about pretty much everything.
- deleted 5y ago
  [deleted]
HenryKissinger 5y ago
Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees. Or, better, to run for office yourself. The latter advice applies to a host of other issues. If you want to save the environment, do not study environmental science. Study politics, and become a politician, at the local, state, or federal level. Gain some hard political power to make or break laws and policies. If you care about voting rights, do not become an activist. Become a politician, and marshal support for a bill. If you care about government surveillance, do not try to fix the problem through your lawyer. Become a member of Congress and marshal support for a bill. We want to have our cake and eat it. To solve the problems of society without making sacrifices. To go home at 6pm and tell the wife that you won in court against the government, have successfully nullified the government's surveillance powers, go to bed at 10, and go to work in the morning. Rather than leave your field to run for office, and possibly make a permanent career change. How many software engineers on this forum would consider becoming full time politicians for the remainder of their career and leave the tech field entirely? Few. Because as much as we like to write walls of text about the issues we pretend to be passionate about, few of us consider these problems to be little more than fictional annoyances that we don't seriously, really care about enough to make personal sacrifices to change. /rant
- rmah 5y ago
  I find it sad that the above comment was heavily downvoted given that he's is correct.
  - nickysielicki 5y ago
    Hardly. > Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees. This isn't the way the government is supposed to work. We cannot count on the legislature to pass constitutional laws in all circumstances, that's why we have these landmark court cases that overturn bad laws. To say that the real solution is to just hope and pray that the legislature comes to their senses and reforms the laws themselves completely circumvents the role of our courts. If that was realistic, why do we have courts at all?
imwillofficial 5y ago
Secrets are the antithesis of democracy. You cannot make an informed choice without transparency. How this balances with things that actually need to be secret is the difficult part, but clearly, the US is failing to find that balance.
- Nasrudith 5y ago
  It is more than just democracy - secrets are outright the antithesis of good service regardless of whom is served. Theranos kept secrets from its investors. Look at any other job - say a mechanic telling you not to look under your hood or an accountant telling you not to look at your account. That would rightfully raise massive suspicion of being out to screw you over.
optimiz3 5y ago
In general the check here is the Legislative branch, where select members have access to classified data and can exert corrective pressure on the Executive. Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
- lisper 5y ago
  Security and freedom always have to be traded off against each other. The U.S. likes to portray itself as a country that errs on the side of freedom, but that self-image seems to be more and more at odds with reality. Alas.
- nickysielicki 5y ago
  The legislative branch [ie: the people writing the laws] are the "check" on... the people writing the unconstitutional laws? The courts must have the authority to review these cases, anything else is completely incoherent. > Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries. If foreign adversaries are trying to overturn illegal domestic dragnet surveillance, maybe I should be paying my taxes to them.
  - 8ytecoder 5y ago
    The check against bad laws is voting public. The check against misuse of a dragnet law by the executive is the legislative branch and not the court - that’s what the OP seems to be saying. Courts can’t keep state secrets by design.
  - mabub24 5y ago
    In principle, the legislative branch represent the people and are checked by elections. In practice, there are party lines and the influence of far too much money; but, the logic is that legislators pushing unconstitutional laws would be voted out, or limited by the other legislators. A lot of the foundational concepts in liberal democracies are justified on the assumption that citizens are engaged and conscientious electors (that is, intelligent and able to make up their own minds), and as a result unconstitutional legislation is a form of political suicide, or a real manifestation of democratic will which lead to constitutional amendments. It operates on the idea that doing x in that particular way "is not who we are". Because you can see that they are unconstitutional laws, means that you can vote and engage politically to stop or pull back that law. Modern political realities have tested those assumptions. A two party deadlocked system, decline of civic education, and unchecked money in elections, are amongst many culprits.
ajay-b 5y ago
Is there a general consensus in the technological community on the purpose of the National Security Agency?
- ghoward 5y ago
  I've heard it said before that the NSA is really the "Government Security Agency". Kind of like this: https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s
Glyptodon 5y ago
I think government should be permitted to say "National Security," but it should come along with a presumption that the evidence would have been adverse to the government's case just like spoliation, and the case should proceed, not a blanket get out of jail free card.
- einpoklum 5y ago
  Why do you believe the (US) government be permitted to say "National Security" to excuse severe, widespread and continuous breaches of constitutional rights?
  - Glyptodon 5y ago
    I don't. Treating witheld/secret information as like spoilation would mean an assumption that whatever cannot be presented would be adverse to their side of the case. Which is to say they could basically say "we can't have this info in courts," and the courts would say "okay, we believe you, but because this information is effectively withheld, and that information would be crucial to the case, we will proceed with summary judgment favoring the other side in areas impacted by said evidence" or something similar. I'm saying they can make the excuse, but there'd be cost pretty much.
  - TheCoelacanth 5y ago
    "Spoilation" is the idea that if you destroy evidence, the court assumes the evidence is unfavorable to you. If the government invokes national security in a case to prevent the court from seeing evidence, it should be treated as destroying evidence and the court should assume the worst about the evidence that they aren't allowed to see.
einpoklum 5y ago
"In Soviet Russia, government always spy on communications. In Capitalist America, communications always spy for government." Ah, hell, I can't make these Yakov Smirnoff jokes work any more. I guess that's when you know things are getting pretty bad.
ihusasmiiu 5y ago
I hate USA so much it's unreal.
btilly 5y ago
I never see "state secrets" invoked without thinking that corruption is probably involved, and sunlight is the best disinfectant. State secrets have always been problematic. Take the very first case: https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subsequent_declassification_of_documents https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subs.... As was later discovered, the biggest secret was how much the government didn't want to be embarrassed. But, common law is common law. If the privilege is invoked, courts get bound by precedent. Regardless of what the personal opinions of the judge may be.
- 3pt14159 5y ago
  Well, we need state secrets and we only really hear of their invocation when its in the news. Theres a podcast[0] I used to listen to with some frequency about the cases the lawyers working in Canada's intelligence services have to handle and how they balance the need for a democratic society with the rule of law, an needing to keep some things secret. I came away with the feeling that it's not all bad. We hear about some misuses, but I don't think it's mostly corruption. [0] https://www.intrepidpodcast.com/podcast https://www.intrepidpodcast.com/podcast
  - btilly 5y ago
    The United States was able to survive for the better part of 200 years without any such doctrine, including fighting a number of major wars. Why is it necessary for us to have this authority now when it was not needed in the Civil War or during either World War? The way that state secrets used to be handled was simple. The government chose on a case by case basis whether or not they were willing to not present their evidence (potentially losing the case because of it), or whether they wished to present their facts to the judge in camera (meaning in private, in chambers, relying on the judge to maintain confidentiality). There is no particularly good reason that we could not have maintained that system. But conversely, now that the States Secrets privilege exists, there is no reason why the government shouldn't be aggressive about asserting it.
    - teloli 5y ago
ARandomerDude 5y ago
"The Official Secrets Act is not to protect secrets, it is to protect officials." - Yes, Prime Minister
Goety 5y ago
Finally the US is defending itself
captn3m0 5y ago
Something similar is also being fought in Indian courts, where the government is on the hook for using the Pegasus spyware (bought from NSO) illegally. Indian laws permit lawful interception (wire-tapping etc), but do not allow hacking. As such, the government's usage of Pegasus was likely unconstitutional, and they are refusing to admit even the usage of Pegasus in court (or the existence of a contract with NSO). The government is citing "national security" to avoid damage. A good legal summary is here: https://www.thehindu.com/opinion/lead/pegasus-is-indias-watergate-moment/article35434074.ece?homepage=true https://www.thehindu.com/opinion/lead/pegasus-is-indias-wate... Latest: https://livelaw.in/top-stories/pegasus-supreme-court-reserves-interim-order-181486 https://livelaw.in/top-stories/pegasus-supreme-court-reserve...

246 points by commoner 5y ago

LatteLazy 5y ago

State secrets has long been the get out of jail free card from the US constitution

java-man 5y ago
And to cover up crime. [0] https://en.wikipedia.org/wiki/United_States_v._Reynolds https://en.wikipedia.org/wiki/United_States_v._Reynolds
nickysielicki 5y ago
Not that long: > While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases." - John Dean https://en.wikipedia.org/wiki/John_Dean https://en.wikipedia.org/wiki/John_Dean

sneak 5y ago

If the executive branch can classify things as sensitive to the national security, and there is a state secrets exception to trial, then how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? The programs in question here are also clearly not national security matters. They were made public, are illegal, and the security of the nation was not affected in any way. The whole house is built on a foundation of lies.

artificialLimbs 5y ago
>> If the executive branch can classify things as sensitive to the national security, and there is a state secrets exception to trial, then how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? This is the meat of the problem with pervasive surveillance. Until this matter is resolved in such a way that makes any surveillance without a warrant be deemed unconsitutional, the idea of 'freedom' is only a ghost in the U.S.
xxpor 5y ago
>how on Earth are the judiciary and executive on equal footing if the executive can simply cause a default outcome of any trial against it? You have to remember, the default answer to "Can I sue the government?" is No. The only suits you're allowed to take to trial are ones the government has allowed themselves to be sued for. For example: https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act While I think the entire idea of sovereign immunity is bullshit, the chance of the doctrine being overturned is next to 0. So we have to live with it. The point is, you're kind of lucky to even get as far as getting this dismissed over state secrets. The real problem with the state secret doctrine is when the feds intervene in a suit between two private parties. https://fas.org/blogs/secrecy/2014/09/uani-state-secrets/ https://fas.org/blogs/secrecy/2014/09/uani-state-secrets/
- einpoklum 5y ago
  I believe you're quoting an irrelevant rule. AFAICT, this was not a torts lawsuit. Wikimedia was not suing for damages, it asked the courts to declare certain government practices illegal and/or force the government to desist these practices.
happythomist 5y ago
The judiciary and executive are not on an equal footing. The judiciary is the weakest branch of government, and the legislature the strongest. These kinds of abuses must be addressed by Congress, not the courts.
- AnimalMuppet 5y ago
  The legislature is supposed to be the strongest. But it's so busy infighting that more and more power falls to the executive, so that things actually get done.

KittenInABox 5y ago

Is my understanding correct that, essentially, you can violate people's constitutional rights and then if you're sued claim investigating the violation would be a national security threat and therefore you should continue to be allowed to violate people's rights without oversight?

erellsworth 5y ago
Sounds pretty accurate.

erellsworth 5y ago

We've investigated ourselves, and concluded that we did nothing wrong.

gego 5y ago

...why sue in the US? Wikimedia Germany would have been much better...

xxpor 5y ago
Who would they sue?
- gego 5y ago
  The US Govt under Espionage and Computer Crime law (Germany ex officio), possibly breach of int treaties (FCN treaties, Germany) and ECHR for individual violations (individuals)...
  - luckylion 5y ago
    There's no way a higher German court would rule against the US government on a major issue.
    - gego 5y ago
      ...possibly... but the discovery phase, witness testimony and and and ... would have more effect than a simple secrecy clause in any us court...
      - rtkwe 5y ago
        The US can and would just refuse to respond.
        ClumsyPilot 5y ago
        that would be telling in its own right
        rtkwe 5y ago
        Would it? The broad strokes of the spying is pretty well established at this point so I'm not sure what new is actually gained in this hypothetical.

waiseristy 5y ago

> ...dismissed for lack of standing. In particular, the government argued that we had not provided sufficient evidence of the government’s surveillance for the case to proceed. It also claimed that the case could not proceed because it would require the Court to consider information the government claims is protected by the state secrets privilege. In other words, the government contended that the case cannot be litigated without disclosing information about Upstream surveillance that would harm U.S. national security—and, accordingly, in its view, the entire case must be dismissed. The classic "you can't prove we did anything illegal, and if you did, that in itself would be illegal" defense. Fuck these people, seriously

literallyaduck 5y ago

There is no greater threat to our people than opaque government. Democracy and secrecy are mutually exclusive. We need you to vote on this issue but we will hide all the relevant facts.

ethbr0 5y ago
Democracy has and always will exist in balance with secrecy. In fact, the polarization we often decry is largely because of transparency. It's harder to nail someone to a cross on partisan radio if it's "the committee decided this" instead of "x voted y."
- dane-pgp 5y ago
  Do you think committees would make better decisions if their members could lie about how they voted? You might "solve" the polarization problem by making it harder to know who to blame, but I don't think that would solve the root cause of people's frustrations.
  - int_19h 5y ago
    Committees would make decisions that are less affected by populist pandering, resulting in a more centrist policy overall, and less severe policy swings between different administrations. Whether such decisions are better or not depends on the specific circumstances and one's subjective perspective. Populism generally translates to more extreme politics, but sometimes more extreme is what you need to dig yourself out of a hole. Conversely, less pandering to popular opinion generally means more insider arrangements and other institutionalized corruption.
    - dane-pgp 5y ago
      It would be nice to think that committees would be freed from the pressures of democratic accountability and could finally make the enlightened decisions they had always been yearning for, but I don't think that is the most likely outcome. Instead you would likely see the dominant party passing extreme legislation on 51/49 majorities, with every politician being able to claim that actually they were a centrist and they voted against the legislation (and it must have been disloyal members of the other party that enabled the vote to pass). In fact, the veil of secrecy might even allow members of a minority party to claim that they are against some extreme policy, but actually collude with a faction from the majority party to narrowly pass it, either because it benefits the politicians themselves (at the expense of their voters) or because the extreme outcome would motivate their supporters to re-elect them.

autoliteInline 5y ago

It seems safe to me to assume that US government security is mostly to keep secrets from it's own citizens. Foreign intelligence agencies know about pretty much everything.

deleted 5y ago
[deleted]

HenryKissinger 5y ago

Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees. Or, better, to run for office yourself. The latter advice applies to a host of other issues. If you want to save the environment, do not study environmental science. Study politics, and become a politician, at the local, state, or federal level. Gain some hard political power to make or break laws and policies. If you care about voting rights, do not become an activist. Become a politician, and marshal support for a bill. If you care about government surveillance, do not try to fix the problem through your lawyer. Become a member of Congress and marshal support for a bill. We want to have our cake and eat it. To solve the problems of society without making sacrifices. To go home at 6pm and tell the wife that you won in court against the government, have successfully nullified the government's surveillance powers, go to bed at 10, and go to work in the morning. Rather than leave your field to run for office, and possibly make a permanent career change. How many software engineers on this forum would consider becoming full time politicians for the remainder of their career and leave the tech field entirely? Few. Because as much as we like to write walls of text about the issues we pretend to be passionate about, few of us consider these problems to be little more than fictional annoyances that we don't seriously, really care about enough to make personal sacrifices to change. /rant

rmah 5y ago
I find it sad that the above comment was heavily downvoted given that he's is correct.
- nickysielicki 5y ago
  Hardly. > Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees. This isn't the way the government is supposed to work. We cannot count on the legislature to pass constitutional laws in all circumstances, that's why we have these landmark court cases that overturn bad laws. To say that the real solution is to just hope and pray that the legislature comes to their senses and reforms the laws themselves completely circumvents the role of our courts. If that was realistic, why do we have courts at all?

imwillofficial 5y ago

Secrets are the antithesis of democracy. You cannot make an informed choice without transparency. How this balances with things that actually need to be secret is the difficult part, but clearly, the US is failing to find that balance.

Nasrudith 5y ago
It is more than just democracy - secrets are outright the antithesis of good service regardless of whom is served. Theranos kept secrets from its investors. Look at any other job - say a mechanic telling you not to look under your hood or an accountant telling you not to look at your account. That would rightfully raise massive suspicion of being out to screw you over.

optimiz3 5y ago

In general the check here is the Legislative branch, where select members have access to classified data and can exert corrective pressure on the Executive. Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.

lisper 5y ago
Security and freedom always have to be traded off against each other. The U.S. likes to portray itself as a country that errs on the side of freedom, but that self-image seems to be more and more at odds with reality. Alas.
nickysielicki 5y ago
The legislative branch [ie: the people writing the laws] are the "check" on... the people writing the unconstitutional laws? The courts must have the authority to review these cases, anything else is completely incoherent. > Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries. If foreign adversaries are trying to overturn illegal domestic dragnet surveillance, maybe I should be paying my taxes to them.
- 8ytecoder 5y ago
  The check against bad laws is voting public. The check against misuse of a dragnet law by the executive is the legislative branch and not the court - that’s what the OP seems to be saying. Courts can’t keep state secrets by design.
- mabub24 5y ago
  In principle, the legislative branch represent the people and are checked by elections. In practice, there are party lines and the influence of far too much money; but, the logic is that legislators pushing unconstitutional laws would be voted out, or limited by the other legislators. A lot of the foundational concepts in liberal democracies are justified on the assumption that citizens are engaged and conscientious electors (that is, intelligent and able to make up their own minds), and as a result unconstitutional legislation is a form of political suicide, or a real manifestation of democratic will which lead to constitutional amendments. It operates on the idea that doing x in that particular way "is not who we are". Because you can see that they are unconstitutional laws, means that you can vote and engage politically to stop or pull back that law. Modern political realities have tested those assumptions. A two party deadlocked system, decline of civic education, and unchecked money in elections, are amongst many culprits.

ajay-b 5y ago

Is there a general consensus in the technological community on the purpose of the National Security Agency?

ghoward 5y ago
I've heard it said before that the NSA is really the "Government Security Agency". Kind of like this: https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s

Glyptodon 5y ago

I think government should be permitted to say "National Security," but it should come along with a presumption that the evidence would have been adverse to the government's case just like spoliation, and the case should proceed, not a blanket get out of jail free card.

einpoklum 5y ago
Why do you believe the (US) government be permitted to say "National Security" to excuse severe, widespread and continuous breaches of constitutional rights?
- Glyptodon 5y ago
  I don't. Treating witheld/secret information as like spoilation would mean an assumption that whatever cannot be presented would be adverse to their side of the case. Which is to say they could basically say "we can't have this info in courts," and the courts would say "okay, we believe you, but because this information is effectively withheld, and that information would be crucial to the case, we will proceed with summary judgment favoring the other side in areas impacted by said evidence" or something similar. I'm saying they can make the excuse, but there'd be cost pretty much.
- TheCoelacanth 5y ago
  "Spoilation" is the idea that if you destroy evidence, the court assumes the evidence is unfavorable to you. If the government invokes national security in a case to prevent the court from seeing evidence, it should be treated as destroying evidence and the court should assume the worst about the evidence that they aren't allowed to see.

einpoklum 5y ago

"In Soviet Russia, government always spy on communications. In Capitalist America, communications always spy for government." Ah, hell, I can't make these Yakov Smirnoff jokes work any more. I guess that's when you know things are getting pretty bad.

ihusasmiiu 5y ago

I hate USA so much it's unreal.

btilly 5y ago

I never see "state secrets" invoked without thinking that corruption is probably involved, and sunlight is the best disinfectant. State secrets have always been problematic. Take the very first case: https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subsequent_declassification_of_documents https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subs.... As was later discovered, the biggest secret was how much the government didn't want to be embarrassed. But, common law is common law. If the privilege is invoked, courts get bound by precedent. Regardless of what the personal opinions of the judge may be.

3pt14159 5y ago
Well, we need state secrets and we only really hear of their invocation when its in the news. Theres a podcast[0] I used to listen to with some frequency about the cases the lawyers working in Canada's intelligence services have to handle and how they balance the need for a democratic society with the rule of law, an needing to keep some things secret. I came away with the feeling that it's not all bad. We hear about some misuses, but I don't think it's mostly corruption. [0] https://www.intrepidpodcast.com/podcast https://www.intrepidpodcast.com/podcast
- btilly 5y ago
  The United States was able to survive for the better part of 200 years without any such doctrine, including fighting a number of major wars. Why is it necessary for us to have this authority now when it was not needed in the Civil War or during either World War? The way that state secrets used to be handled was simple. The government chose on a case by case basis whether or not they were willing to not present their evidence (potentially losing the case because of it), or whether they wished to present their facts to the judge in camera (meaning in private, in chambers, relying on the judge to maintain confidentiality). There is no particularly good reason that we could not have maintained that system. But conversely, now that the States Secrets privilege exists, there is no reason why the government shouldn't be aggressive about asserting it.
  - teloli 5y ago

ARandomerDude 5y ago

"The Official Secrets Act is not to protect secrets, it is to protect officials." - Yes, Prime Minister

Goety 5y ago

Finally the US is defending itself

captn3m0 5y ago

Something similar is also being fought in Indian courts, where the government is on the hook for using the Pegasus spyware (bought from NSO) illegally. Indian laws permit lawful interception (wire-tapping etc), but do not allow hacking. As such, the government's usage of Pegasus was likely unconstitutional, and they are refusing to admit even the usage of Pegasus in court (or the existence of a contract with NSO). The government is citing "national security" to avoid damage. A good legal summary is here: https://www.thehindu.com/opinion/lead/pegasus-is-indias-watergate-moment/article35434074.ece?homepage=true https://www.thehindu.com/opinion/lead/pegasus-is-indias-wate... Latest: https://livelaw.in/top-stories/pegasus-supreme-court-reserves-interim-order-181486 https://livelaw.in/top-stories/pegasus-supreme-court-reserve...