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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

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
  > 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? Because now you are an Empire
  - UnpossibleJim 5y ago
    A child always turns into the parent they resent =P
  - bobthechef 5y ago
    A failing Empire, though. There's no turning back.
    - CRConrad 5y ago
      Should that perhaps be part of the defintion of an empire? Something like, "you only know you really are an empire when you realise you're a failing one."
- wahern 5y ago
  > 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). The issue here isn't whether the government wants to use secret evidence to prosecute someone else, but whether a plaintiff, to make its case, can force the government to disclose state secrets. That's an entirely different situation, one that historically was extremely rare or even non-existent when the Federal administrative state was miniscule and there weren't broad rights (statutory or court-made) that created rights of action against the government or which waived sovereign immunity (i.e. you couldn't sue the government, period). Wikipedia's lawsuit begs the question of the injury. Unlawful surveillance by itself wasn't an injury that courts would historically have taken cognizance of, modulo whatever rare exceptions there might have been. Courts wouldn't have considered it their role to squash any and all illegal government behavior; a situation like Wikipedia's claim would have best been addressed through the ballot box. Remember, courts required and at least nominally still require concrete injuries. A claim without an injury is no claim at all, and invasion of privacy on its own was not a concrete injury. That's a recent judicial creation. The remedy for an illegal search was a) a claim for trespass if trespassing occurred, and b) return of illegally seized evidence, which prevented use at trial only as a consequence of the government no longer being in possession[1] and unable to force the defendant to submit it themself (i.e. self incrimination). If neither situation applied, then an illegal search was of no matter to the court; mere illegality wasn't an injury. Application of an exclusionary rule disconnected from this simple, logical application of traditional rights didn't come about until the past century or two. And the reframing and reconceptualization of traditional constitutional rights as a matter of privacy (as opposed to dominion over property and conscience) and then recognizing an invasion of privacy per se as a concrete injury is an even more recent innovation. Not only recent, but incomplete and perhaps a bit tenuous--the logic of Roe v. Wade is fundamentally grounded in the logic of privacy, which is why Roe v. Wade rests on somewhat shaky legal ground. [1] Traditional rules of evidence would have required submission of an original document to establish a fact evidenced in the document. A government witness couldn't simply recite it from memory; that would be hearsay. A government created copy would at best have had heavily discounted credibility given the suspect provenance, and I bet often would have been inadmissible--not because of any fruit-of-the-poison-tree logic, but because it's likewise effectively hearsay.
syshum 5y ago
>>Well, we need state secrets a No we do not. State Secrets is an affront to concept of "government of the people, for the people" One can not have an informed public, that is able to choose how the government should function, who to send to represent them, and everything else with a functional self governing population if there is exists secrets from said population Governments should never be allowed to perform actions in our name while never allowing US to know of those actions. The only thing on that path is corruption and Tyranny
- encryptluks2 5y ago
  Finally, someone reasonable on the matter. I can only assume the type of people to argue for state secrets would be those directly benefiting from them, and trust me a lot of people receive a lot of money because of them.
stefan_ 5y ago
There is something deeply unsettling about this comment because it seems to be written from a PoV that exudes pure naivety. Remember the kangaroo court that is FISA? Bored old men rubber stamping whatever is put in front of them, and even then the services didn't bother with some of the worst things. It took Snowden to expose this - now think again about that podcast of staff lawyers.
- dataflow 5y ago
  > Remember the kangaroo court that is FISA? Bored old men rubber stamping whatever is put in front of them What about incidents like https://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-program-unconstitutional.html https://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-n...?

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
> 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? Because now you are an Empire
- UnpossibleJim 5y ago
  A child always turns into the parent they resent =P
- bobthechef 5y ago
  A failing Empire, though. There's no turning back.
  - CRConrad 5y ago
    Should that perhaps be part of the defintion of an empire? Something like, "you only know you really are an empire when you realise you're a failing one."
wahern 5y ago
> 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). The issue here isn't whether the government wants to use secret evidence to prosecute someone else, but whether a plaintiff, to make its case, can force the government to disclose state secrets. That's an entirely different situation, one that historically was extremely rare or even non-existent when the Federal administrative state was miniscule and there weren't broad rights (statutory or court-made) that created rights of action against the government or which waived sovereign immunity (i.e. you couldn't sue the government, period). Wikipedia's lawsuit begs the question of the injury. Unlawful surveillance by itself wasn't an injury that courts would historically have taken cognizance of, modulo whatever rare exceptions there might have been. Courts wouldn't have considered it their role to squash any and all illegal government behavior; a situation like Wikipedia's claim would have best been addressed through the ballot box. Remember, courts required and at least nominally still require concrete injuries. A claim without an injury is no claim at all, and invasion of privacy on its own was not a concrete injury. That's a recent judicial creation. The remedy for an illegal search was a) a claim for trespass if trespassing occurred, and b) return of illegally seized evidence, which prevented use at trial only as a consequence of the government no longer being in possession[1] and unable to force the defendant to submit it themself (i.e. self incrimination). If neither situation applied, then an illegal search was of no matter to the court; mere illegality wasn't an injury. Application of an exclusionary rule disconnected from this simple, logical application of traditional rights didn't come about until the past century or two. And the reframing and reconceptualization of traditional constitutional rights as a matter of privacy (as opposed to dominion over property and conscience) and then recognizing an invasion of privacy per se as a concrete injury is an even more recent innovation. Not only recent, but incomplete and perhaps a bit tenuous--the logic of Roe v. Wade is fundamentally grounded in the logic of privacy, which is why Roe v. Wade rests on somewhat shaky legal ground. [1] Traditional rules of evidence would have required submission of an original document to establish a fact evidenced in the document. A government witness couldn't simply recite it from memory; that would be hearsay. A government created copy would at best have had heavily discounted credibility given the suspect provenance, and I bet often would have been inadmissible--not because of any fruit-of-the-poison-tree logic, but because it's likewise effectively hearsay.

syshum 5y ago

>>Well, we need state secrets a No we do not. State Secrets is an affront to concept of "government of the people, for the people" One can not have an informed public, that is able to choose how the government should function, who to send to represent them, and everything else with a functional self governing population if there is exists secrets from said population Governments should never be allowed to perform actions in our name while never allowing US to know of those actions. The only thing on that path is corruption and Tyranny

encryptluks2 5y ago
Finally, someone reasonable on the matter. I can only assume the type of people to argue for state secrets would be those directly benefiting from them, and trust me a lot of people receive a lot of money because of them.

stefan_ 5y ago

There is something deeply unsettling about this comment because it seems to be written from a PoV that exudes pure naivety. Remember the kangaroo court that is FISA? Bored old men rubber stamping whatever is put in front of them, and even then the services didn't bother with some of the worst things. It took Snowden to expose this - now think again about that podcast of staff lawyers.

dataflow 5y ago
> Remember the kangaroo court that is FISA? Bored old men rubber stamping whatever is put in front of them What about incidents like https://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-program-unconstitutional.html https://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-n...?