11 ms·

> Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court. One of the key objections

by jarrett 13y ago

> Nothing forces the government, or any other entity, to publicize its interpretation of law until it is challenged in public court. One of the key objections raised during this controversy is that perhaps the executive should be forced to reveal its interpretation of the law. What public policy objective is served by keeping this secret? Bear in mind, we're not talking about disclosing detailed information about US military or intelligence operations. It's not something like "John Smith is an undercover agent in Country X," or "The NSA now has a tap on a router at such and such location." Rather, we're only talking about disclosing the executive's opinion as to what the law means. What danger is posed by simply publishing theories as to a law's meaning? Would enemies really derive any advantage from knowing this? > The gist of the DOJ's argument is sound. The key thing to understand is that the FISC court is not making law. This is partially true. The court is not writing statutes. However, they are (presumably) creating a body of case law. And case law is law. Yes, it is merely an elaboration on statutes and prior caselaw. But it is new law, nonetheless, in the sense that it decides legal questions which previously were undecided. Just as one should be concerned with the laws created by SCOTUS, one should be concerned with the laws created by the FISA court.

dllthomas 13y ago
> Would enemies really derive any advantage from knowing this? Probably, yes. All sorts of things leak information, and "we don't do X" seems like it could easily be useful. That said, the question arises how much whatever marginal security against foreign threats actually means to us, as weighed against cost and freedom and good governance (which are partly a matter of security against other classes of threat).
- jarrett 13y ago
  Remember though, that I'm not proposing the government disclose what it does, but rather what it understands the law to mean. So saying "the law would permit X" doesn't mean "we do X." For example, if I asked my local government whether eminent domain could, someday, be used to seize my home, the truthful answer would be yes. But that would not help me guess whether the government actually plans to do so. You did however imply that it might only bring marginal security. So if you're saying that enemies could derive an infinitesimal advantage from knowing how the government interprets the law, I suppose I can't disagree with you on that.
  - dllthomas 13y ago
    Saying "we don't think law permits X" should damned well mean "we don't do X", though. Knowing, reliably, "they don't do X" is potentially useful information. It would certainly change my strategy in a game of chess if I knew my opponent was forbidden a particular move. I meant "marginal" in the sense of change, not the sense of unimportant. I don't have a good way of quantifying just how important it's likely to be. I certainly wouldn't make a claim myself that it is "infinitesimal" - it might very well be, but I don't think that's obvious without any data and we're somewhat limited in the data we have available.
    - jarrett 13y ago
      > Saying "we don't think law permits X" should damned well mean "we don't do X", though. I understand that it can eliminate possibilities. But my argument is that it won't confirm that the US engages in certain activities. The latter would probably be much more harmful. And it's not as if enemies can intuit what we are doing by process of elimination. The only things they can eliminate by studying the law are those things that are illegal. That still leaves open the truly vast number of lawful strategic possibilities. Thus, enemies are not likely to be able to guess our moves just because a handful of things are precluded by law. With respect to your chess analogy, the set of possible and reasonable moves is much smaller. So yes, knowing that an artificial limitation is imposed on your opponent's moves would be very helpful in a chess game, where players generally only have a handful of reasonable moves per turn. But that's why it's not a proper analogy for something like counterterrorism strategy. And thus, I do think the harm to US interests would be negligible. We probably face a much greater risk by, for example, publishing the layouts of our streets and the names of our elected representatives than by publishing legal opinions. Street layouts can be used to plan terrorist attacks and invasions; the names of elected officials are a key ingredient to assassination attempts. Yet nobody has any qualms about publishing these things, and rightly so.
dragonwriter 13y ago
> However, they are (presumably) creating a body of case law. And case law is law. Are they? Non-appellate court decisions, except in that they are binding in future disputes between the same parties under the principle or res judicata, aren't binding on future courts (not different courts, nor even the same court.) Appellate court decisions are binding on lower courts subject that court of appeals, but its not clear to me that, even with the review relationship they have, that the relationship between the FISC and the FISCR is one of lower court and appellate court such that the decisions of the latter are precedent binding on the latter. And even if it was, IIRC, only published decisions generally serve as binding precedent. So I'd be inclined to say that the FISC almost certainly doesn't, and the FISCR probably also doesn't, really create case law in any substantive sense.

by jarrett 13y ago

dllthomas 13y ago

> Would enemies really derive any advantage from knowing this? Probably, yes. All sorts of things leak information, and "we don't do X" seems like it could easily be useful. That said, the question arises how much whatever marginal security against foreign threats actually means to us, as weighed against cost and freedom and good governance (which are partly a matter of security against other classes of threat).

jarrett 13y ago
Remember though, that I'm not proposing the government disclose what it does, but rather what it understands the law to mean. So saying "the law would permit X" doesn't mean "we do X." For example, if I asked my local government whether eminent domain could, someday, be used to seize my home, the truthful answer would be yes. But that would not help me guess whether the government actually plans to do so. You did however imply that it might only bring marginal security. So if you're saying that enemies could derive an infinitesimal advantage from knowing how the government interprets the law, I suppose I can't disagree with you on that.
- dllthomas 13y ago
  Saying "we don't think law permits X" should damned well mean "we don't do X", though. Knowing, reliably, "they don't do X" is potentially useful information. It would certainly change my strategy in a game of chess if I knew my opponent was forbidden a particular move. I meant "marginal" in the sense of change, not the sense of unimportant. I don't have a good way of quantifying just how important it's likely to be. I certainly wouldn't make a claim myself that it is "infinitesimal" - it might very well be, but I don't think that's obvious without any data and we're somewhat limited in the data we have available.
  - jarrett 13y ago
    > Saying "we don't think law permits X" should damned well mean "we don't do X", though. I understand that it can eliminate possibilities. But my argument is that it won't confirm that the US engages in certain activities. The latter would probably be much more harmful. And it's not as if enemies can intuit what we are doing by process of elimination. The only things they can eliminate by studying the law are those things that are illegal. That still leaves open the truly vast number of lawful strategic possibilities. Thus, enemies are not likely to be able to guess our moves just because a handful of things are precluded by law. With respect to your chess analogy, the set of possible and reasonable moves is much smaller. So yes, knowing that an artificial limitation is imposed on your opponent's moves would be very helpful in a chess game, where players generally only have a handful of reasonable moves per turn. But that's why it's not a proper analogy for something like counterterrorism strategy. And thus, I do think the harm to US interests would be negligible. We probably face a much greater risk by, for example, publishing the layouts of our streets and the names of our elected representatives than by publishing legal opinions. Street layouts can be used to plan terrorist attacks and invasions; the names of elected officials are a key ingredient to assassination attempts. Yet nobody has any qualms about publishing these things, and rightly so.

dragonwriter 13y ago

> However, they are (presumably) creating a body of case law. And case law is law. Are they? Non-appellate court decisions, except in that they are binding in future disputes between the same parties under the principle or res judicata, aren't binding on future courts (not different courts, nor even the same court.) Appellate court decisions are binding on lower courts subject that court of appeals, but its not clear to me that, even with the review relationship they have, that the relationship between the FISC and the FISCR is one of lower court and appellate court such that the decisions of the latter are precedent binding on the latter. And even if it was, IIRC, only published decisions generally serve as binding precedent. So I'd be inclined to say that the FISC almost certainly doesn't, and the FISCR probably also doesn't, really create case law in any substantive sense.