7 ms·

"Secret court" and "secret law" What an absurd concept and a sad place for the US to be.

by joshfraser 13y ago

jivatmanx 13y ago
I wonder if they'd also have "secret police" were it not for the historical stigma?
- dllthomas 13y ago
  We have the "secret service"...
  - jlgreco 13y ago
    Not sure what your point here is; their name predates the stigma.
    - dllthomas 13y ago
      Not making any deep point.
mokus 13y ago
Agreed. We need a "catch-22" amendment, explicitly forbidding secret laws.
- leoc 13y ago
  The amendment should of course be a secret. :)
  - taeric 13y ago
    I would say it should be formulated as such: The only way to make a secret law is to have everyone agree on the merits for keeping the law secret.
- toufka 13y ago
  It'd be perfect. It would have been instigated by the fall of one character, name 'Snowden'. http://en.wikipedia.org/wiki/Yossarian#Snowden http://en.wikipedia.org/wiki/Yossarian#Snowden
  - warmwaffles 13y ago
    I completely forgot about Snowden in Catch-22, weird that Edward Snowden and the fictional character share the same name...unless that was intentional.
    - Vivtek 13y ago
      He chose his own name intentionally? Or a time traveler visited Joseph Heller?
mpyne 13y ago
Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories. Likewise the court itself is not secret. The proceedings are, which is worrisome in this particular case. But this would hardly be the only time that has ever happened, how many times have we seen e.g. the EPA sue a company and later the company settles for "an undisclosed amount" with the settlement itself held under a gag order?
- discostrings 13y ago
  > Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories. In this context, "secret law" means that the executive branch refuses to share their interpretation of a law passed by Congress. So while it may seem certain what a law says and what its writer meant by it, the executive branch sometimes chooses to creatively interpret the law to do whatever it wants. If the executive branch fails to explain its rationale and interpretation of the law, and the interpretation is much broader than the law's intended purpose, it's effectively a secret law.
  - mpyne 13y ago
    Ah, I see. Good point.
wycats 13y ago
There is no secret law. FISA, the law which authorizes surveillance, is a public law approved by Congress. Courts make secret decisions all the time, especially when surveillance is involved. When a local police department gets a wiretap on a mob boss, it happens secretly. If a detective oversteps in the midst of a larger investigation, it's quite likely that the ruling about the particular use of surveillance would be sealed. The question here is not whether we have courts that make secret rulings. It shouldn't surprise anyone that judicial oversight over in-progress investigations would be secret while the investigation (and related investigations) were in progress. The useful policy question is what the scope and length of the seal should be. For FISA, it seems that the scope and length is "everything, and forever". We can do better than that.
- LoganCale 13y ago
  There is, however, a secret interpretation of the law, which the executive branch uses to apply the public law and which they refuse to reveal to the public.
- btilly 13y ago
  Actually the USA does have secret laws. Ask for the law requiring ID to travel. Nobody will show it to you. A decade ago an activist sued to try to see it, the case went to the 9th circuit, and he lost. Without being allowed to see the law. See http://papersplease.org/gilmore/ http://papersplease.org/gilmore/ for verification.
  - talmand 13y ago
    Not that I agree with the concept of the law in question, a private airline does have the right to require that you present any ID of their choosing to fly on their planes. They have the right to refuse you if you choose to not follow their rules. There is room for debate on whether the airlines should be creating their rules based on laws for the TSA that are then not publicly displayed. But the thing is, if the law pertains to the airlines and not the public then that's the sticking point. Let's say that the lawmakers had decided that said law involved national security and that gives precedent to keep the law secret to those it does not directly affect. The law, which we haven't seen, likely only pertains to the airlines directly and not the passengers. The airlines are informed of the law that tells them they are required to request ID. It's likely you couldn't even sue in that case because you wouldn't have standing. The thing is, this type of law likely no longer applies. These days, in the U.S. at least, you typically do not have to show ID at the counter to get your tickets or at the gate to get on the plane, which was done in the past. They might ask to verify you should be getting the tickets you are requesting, but likely they won't resist much if you refuse. Recently you only need a credit card to identify yourself to get your tickets from the automated kiosk. Now you have to show ID to a government agent at the security gate to get past. That's the rub, they are now requiring that you show ID to get past the security gate, not to get on the plane. You are not being restricted from traveling by not showing ID, you are being restricted on entering a certain part of the airport for not showing ID. If you can get past the security gate, you are free to enter the plane. Therefore, you cannot claim the government is preventing your right to travel for refusing to show ID at all. They're just not letting you go down a certain hallway in a building for refusing to show ID. Any law can be written to do anything you want that easily passes Constitutional muster if you think things through.
rayiner 13y ago
There is nothing sad about it. The "secret court" (FISC) is a panel of regular U.S. District Court judges created by Congress in the FISA to add an additional layer of protection on activity that would otherwise operate entirely in secret within the executive branch. They key understanding is that it is empowered to grant warrants in situations where an Article III warrant would not be Constitutionally required (specifically, surveillance of foreign intelligence agents within the U.S.). Surveillance that would require a warrant under the Constitution still requires the government to obtain a warrant from an Article III court. FISA did not move some previously public check on executive power into a secret court within the DOJ. Instead, it created an additional mechanism for the judiciary to exercise some supervision over executive activity that would not otherwise be subject to any judicial oversight under the Constitution.
- ensignavenger 13y ago
  Are you sure that FISC only applies to surveillance of foreign intelligence? I thought the FISC Verizon phone record ruling applied to US citizens and domestic phone calls?
  - dragonwriter 13y ago
    > Are you sure that FISC only applies to surveillance of foreign intelligence? It applies to surveillance for foreign intelligence purposes. > I thought the FISC Verizon phone record ruling applied to US citizens and domestic phone calls? Well, yes, but that broad sweep was (officially, at least) for foreign intelligence purposes.
  - rayiner 13y ago
    I'm talking about the rationale for FISC, which was based on surveillance of foreign intelligence. If they're overstepping their bounds and granting warrants for things that would otherwise require an Article III warrant, that's obviously a huge issue, but the facts on that are still sparse. Specifically, the Verizon phone record ruling might not Constitutionally require a warrant.

"Secret court" and "secret law" What an absurd concept and a sad place for the US to be.

jivatmanx 13y ago

I wonder if they'd also have "secret police" were it not for the historical stigma?

dllthomas 13y ago
We have the "secret service"...
- jlgreco 13y ago
  Not sure what your point here is; their name predates the stigma.
  - dllthomas 13y ago
    Not making any deep point.

mokus 13y ago

Agreed. We need a "catch-22" amendment, explicitly forbidding secret laws.

leoc 13y ago
The amendment should of course be a secret. :)
- taeric 13y ago
  I would say it should be formulated as such: The only way to make a secret law is to have everyone agree on the merits for keeping the law secret.
toufka 13y ago
It'd be perfect. It would have been instigated by the fall of one character, name 'Snowden'. http://en.wikipedia.org/wiki/Yossarian#Snowden http://en.wikipedia.org/wiki/Yossarian#Snowden
- warmwaffles 13y ago
  I completely forgot about Snowden in Catch-22, weird that Edward Snowden and the fictional character share the same name...unless that was intentional.
  - Vivtek 13y ago
    He chose his own name intentionally? Or a time traveler visited Joseph Heller?

mpyne 13y ago

Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories. Likewise the court itself is not secret. The proceedings are, which is worrisome in this particular case. But this would hardly be the only time that has ever happened, how many times have we seen e.g. the EPA sue a company and later the company settles for "an undisclosed amount" with the settlement itself held under a gag order?

discostrings 13y ago
> Is the law itself actually secret? I thought someone linked to Section 702 straight off of the GPO website on one of the other stories. In this context, "secret law" means that the executive branch refuses to share their interpretation of a law passed by Congress. So while it may seem certain what a law says and what its writer meant by it, the executive branch sometimes chooses to creatively interpret the law to do whatever it wants. If the executive branch fails to explain its rationale and interpretation of the law, and the interpretation is much broader than the law's intended purpose, it's effectively a secret law.
- mpyne 13y ago
  Ah, I see. Good point.

wycats 13y ago

There is no secret law. FISA, the law which authorizes surveillance, is a public law approved by Congress. Courts make secret decisions all the time, especially when surveillance is involved. When a local police department gets a wiretap on a mob boss, it happens secretly. If a detective oversteps in the midst of a larger investigation, it's quite likely that the ruling about the particular use of surveillance would be sealed. The question here is not whether we have courts that make secret rulings. It shouldn't surprise anyone that judicial oversight over in-progress investigations would be secret while the investigation (and related investigations) were in progress. The useful policy question is what the scope and length of the seal should be. For FISA, it seems that the scope and length is "everything, and forever". We can do better than that.

LoganCale 13y ago
There is, however, a secret interpretation of the law, which the executive branch uses to apply the public law and which they refuse to reveal to the public.
btilly 13y ago
Actually the USA does have secret laws. Ask for the law requiring ID to travel. Nobody will show it to you. A decade ago an activist sued to try to see it, the case went to the 9th circuit, and he lost. Without being allowed to see the law. See http://papersplease.org/gilmore/ http://papersplease.org/gilmore/ for verification.
- talmand 13y ago
  Not that I agree with the concept of the law in question, a private airline does have the right to require that you present any ID of their choosing to fly on their planes. They have the right to refuse you if you choose to not follow their rules. There is room for debate on whether the airlines should be creating their rules based on laws for the TSA that are then not publicly displayed. But the thing is, if the law pertains to the airlines and not the public then that's the sticking point. Let's say that the lawmakers had decided that said law involved national security and that gives precedent to keep the law secret to those it does not directly affect. The law, which we haven't seen, likely only pertains to the airlines directly and not the passengers. The airlines are informed of the law that tells them they are required to request ID. It's likely you couldn't even sue in that case because you wouldn't have standing. The thing is, this type of law likely no longer applies. These days, in the U.S. at least, you typically do not have to show ID at the counter to get your tickets or at the gate to get on the plane, which was done in the past. They might ask to verify you should be getting the tickets you are requesting, but likely they won't resist much if you refuse. Recently you only need a credit card to identify yourself to get your tickets from the automated kiosk. Now you have to show ID to a government agent at the security gate to get past. That's the rub, they are now requiring that you show ID to get past the security gate, not to get on the plane. You are not being restricted from traveling by not showing ID, you are being restricted on entering a certain part of the airport for not showing ID. If you can get past the security gate, you are free to enter the plane. Therefore, you cannot claim the government is preventing your right to travel for refusing to show ID at all. They're just not letting you go down a certain hallway in a building for refusing to show ID. Any law can be written to do anything you want that easily passes Constitutional muster if you think things through.

rayiner 13y ago

There is nothing sad about it. The "secret court" (FISC) is a panel of regular U.S. District Court judges created by Congress in the FISA to add an additional layer of protection on activity that would otherwise operate entirely in secret within the executive branch. They key understanding is that it is empowered to grant warrants in situations where an Article III warrant would not be Constitutionally required (specifically, surveillance of foreign intelligence agents within the U.S.). Surveillance that would require a warrant under the Constitution still requires the government to obtain a warrant from an Article III court. FISA did not move some previously public check on executive power into a secret court within the DOJ. Instead, it created an additional mechanism for the judiciary to exercise some supervision over executive activity that would not otherwise be subject to any judicial oversight under the Constitution.

ensignavenger 13y ago
Are you sure that FISC only applies to surveillance of foreign intelligence? I thought the FISC Verizon phone record ruling applied to US citizens and domestic phone calls?
- dragonwriter 13y ago
  > Are you sure that FISC only applies to surveillance of foreign intelligence? It applies to surveillance for foreign intelligence purposes. > I thought the FISC Verizon phone record ruling applied to US citizens and domestic phone calls? Well, yes, but that broad sweep was (officially, at least) for foreign intelligence purposes.
- rayiner 13y ago
  I'm talking about the rationale for FISC, which was based on surveillance of foreign intelligence. If they're overstepping their bounds and granting warrants for things that would otherwise require an Article III warrant, that's obviously a huge issue, but the facts on that are still sparse. Specifically, the Verizon phone record ruling might not Constitutionally require a warrant.