9 ms·

US court rejects state-secrets defense in NSA surveillance case

225 points by pvnick 13y ago

unclebucknasty 13y ago
If this holds, it could be a key ruling. The government's assertions of the need for secrecy as a matter of national security in virtually everything have essentially given it carte blanche to do as it pleases AND without true oversight.
- apalmer 13y ago
  The NSA program has true oversight, the 'problem' is that the overseers cant be bothered to actually excersize any restraints on the program.
  - mpyne 13y ago
    How do you know? If you judge just by warrant success rate, you should realize that a judge can informally reject a warrant multiple times, and only when it's finally satisfactory to the judge does it end up counting as being 'formally proposed'. Justice Kollar-Kotelly described part of the process in a WaPo story, IIRC.
- rayiner 13y ago
  The state secrets defense isn't all that common. It's usually used to keep weapons programs and the like secret, where we don't want to reveal the extent of our military capabilities. National security things don't get litigated that often more because nobody has standing.
  - GVIrish 13y ago
    It used to not be all that common. Now it is routinely being used to prevent people from uncovering the massive and pervasive spying apparatus.
  - MaysonL 13y ago
    Go look up the original SCOTUS case for the state secrets defense: it was based on Pentagon lies. There was no, repeat NO national security secret involved, merely facts which would have embarassed people and possibly ruined careers (which should probably have been ruined).
    - andrewljohnson 13y ago
      I don't think it's so cut and dry with United States v. Reynolds. Sure, the documents actually didn't contain state secrets about the B29. But then again, SCOTUS didn't examine the documents. SCOTUS is basically saying with this precedent "If the executive says it's a war secret, it's a war secret, and the tort case of some grieving family can wait for another day." So maybe we don't agree with that precedent, and we need a new law. Current precedent did not occur because SCOTUS read the docs and let the government lie, though. It occurred because the justices decided not to read the document, and instead put national security above a tort. Some stuff I read: * http://www.silha.umn.edu/news/summer2003.php?entry=200788 http://www.silha.umn.edu/news/summer2003.php?entry=200788 * http://loc.gov/law/help/usconlaw/pdf/PSQ_122_3_Fisher.pdf http://loc.gov/law/help/usconlaw/pdf/PSQ_122_3_Fisher.pdf * http://en.wikipedia.org/wiki/State_secrets_privilege http://en.wikipedia.org/wiki/State_secrets_privilege
  - unclebucknasty 13y ago
    That's actually the point. The government attempted to extend the state secrets defense to cover the NSA's covert activities. But, they've been shot down by this court. Not only do they have to find new cover to justify keeping this in the dark, it also inspires the hope that some of this carte blanche activity granted by the kangaroo FISA Court (and by Chief Roberts to some extent) can be successfully challenged. And, in general, that the need for secrecy (and the activity itself) will someday need to be justified in total.
- pekk 13y ago
  A de facto surveillance state is created simply by the networking together of the companies which give you internet service, search service, serve all your pages, connect your VOIP calls, handle your transactions, analyse your purchases, collect health information on you, etc. And trade all your data among themselves freely. And startups are in the vanguard of all this data collection. We lost when we allowed all this data to be concentrated together in this way. We let it happen because it was done by private industry rather than the government, which we wouldn't have stood for. After we let that happen, government access to this data (by subpoena if nothing else) was a given. But even if we somehow forbade the government from using it tomorrow, it would still be accessible to these corporations and their political allies, with even less transparency and less accountability. The public doesn't know what private corporations are doing, because there is no transparency. If the public knew, it wouldn't care what they are doing, because they are understood to have carte blanche under capitalism. Corporate obligations are supposedly exhausted by making profit or looking out for stockholders. And even if the public cared about corporate surveillance, there is really nothing they could do about it, because the corporation has a 'right' to do almost whatever it wants as long as it has a strong income stream. If you care about the surveillance and its abuse in itself, you have to go much deeper than sanctioning the NSA.
mratzloff 13y ago
This would be the first step to challenging the legality of NSA wiretapping, right?
lettergram 13y ago
The idea that the government can enact laws which allow them to create secret programs/law, then allow the justice system to secretly rule on the laws is monstrous. It's as if the government can only audit itself, not external entity (the populous for example) can not review their practices. Even if this judge ruled this way, the judge above can simply overturn it. To be honest, I am against ever striking, forming/joining a union, or ever going to a rally. I feel strongly about things, share my thoughts and hope someone listens (and obviously vote), but I think this is the most ashamed I have ever been at being a citizen of a country or a human being in general. This is the only judge that has ruled this way, and I have seen plenty of other cases where the judge ruled in the opposing direction. For the first time I feel going out and protesting may be the only option (especially if this ruling is overturned).
- apalmer 13y ago
  --To be honest, I am against ever striking, forming/joining a union, or ever going to a rally. Aside, but why? I am too lazy to do such things myself, and I know many who don't see the need as things are good enough as they are from their perspective, but i think this is the first time i have seen an 'ideological' opposition to striking, unions, or rallying.
  - lettergram 13y ago
    I am against wasting my time. I think protests are a huge time sync and in the end there will be likely nothing to show for it. Benjamin Franklin had it right when he wrote Poor Richard's Almanack, things can be achieved with a pen or a gun, holding picket signs with ~500 people outside the white house is a daily (or at least once a month) occurrence. Don't get me wrong, I would protest if I thought I could (with the help of others) achieve something, say if 30,000 people protested I could attend that if I felt strongly. The problem I have is I've never felt strong enough, nor have I ever seen a protest successful in my lifetime. The country would need to have at least several million protesters (enough to shut down the economy) to make a large impact to effect the surveillance state (at least from what I have seen).
    - 13y ago
fixxer 13y ago
I'm not going to hold my breath, but I'm very happy to see some inkling that the Constitution has not been all but completely flushed down the crapper by this and the previous administration. Any opinions on Rand Paul? I hear a lot of talk, but I'm not seeing any action.
- Karunamon 13y ago
  Well, since you asked.. he unfortunately holds a lot of the more distasteful stances that Ron does (in short, tyranny and rights violations is okay if exercised at the state, rather than federal level)
  - redblacktree 13y ago
    This is not really an argument, just something to think about: Local government is a lot easier to affect, as a citizen.
    - fixxer 13y ago
      Agreed, so long we have mobility. The People's Republic of Chicago would charge an "exit tax" on businesses that leave if they could.
    - wavefunction 13y ago
      That could cut both ways. Easier to affect in both good or bad ways, I mean. I do agree that simply delineated systems are at least easier to understand and hold "accountable" though.
  - mchusma 13y ago
    You really need to compare him to the baseline politician. In that comparison, Ron Paul in general has advocated quite a record against tyranny and rights violations, including standing up to privacy violations, government control of printing money, and conducting war to expand power and violate rights. In fact, almost the exact opposity of tyranny and rights violations. Definition of tyranny according to Wikipedia. "an absolute ruler unrestrained by law or constitution, and/or one who has usurped legitimate sovereignty" His support of state rights was always (this is my perception) based off: in theory, the constitution and in practice, the idea that government at the lowest levels (and free movement between governments) is the best way to fight tyranny and support human rights.
trestles 13y ago
Could you just PGP encrypt all your email?
- fixxer 13y ago
  I think you're missing the point: the metadata alone is an invasion of your privacy. Something that people don't understand is that metadata is extremely revealing, both in what it tell you about the target's activity (social habits, networks) and how it allows the analyst to build a picture of "what is normal for John Doe". None of that is the government's business according to our founders, and I'm not keen to give up more of my rights to this administration or the next one. I guess I'm a stickler, but if you study history enough, you'll be a stickler too.
  - rayiner 13y ago
    The founders had zilch to say about monitoring activity or networks. You could tail people in 1789 too, and it didn't require a warrant then.
    - dllthomas 13y ago
      But you couldn't tail everyone.
      - rayiner 13y ago
        And?
        dllthomas 13y ago
        And there is a substantive difference between surveillance and mass surveillance. It's not just a matter of degree; it's a matter of kind.
        rayiner 13y ago
        And the 4th amendment doesn't say anything about either. The fact that something is bad doesn't mean that the Constitution provides some means to make that thing illegal.
seferphier 13y ago
This is a great victory (for now)! This is why we need to separate the judiciary from the government or any politics whatsoever. I am not so confident that the supreme court would find the same ruling since the president have the power to nominate the justices. I find US practice of the Senate questioning the nominee's ideology awkward. Justices need to have permanent tenure to prevent political influences to affect their decisions.
- hypersoar 13y ago
  This handing was handed down by a federal district court. The judges on that court are appointed by the President, confirmed by the Senate, and serve for life. Moreover, the Senate routinely blocks their appointment for political reasons. So what distinguishes them from SCoTUS justices in this sense?
zaroth 13y ago
Preaching to the choir, but this is why whistle blowers are especially important; The ruling rejected the state-secrets argument. “Given the multiple public disclosures of information regarding the surveillance program, the court does not find that the very subject matter of the suits constitutes a state secret,” Judge Jeffrey White wrote in the ruling. Everyone "knew" the NSA was wiretapping everything, but until Snowden leaked the docs, lawsuits like this were regularly shut down under 'state secret' doctrine. I don't exactly have high hopes for how it will turn out, but at least now perhaps we'll one day see Robert's tortured reasoning for why he let this happen.
pekk 13y ago
Given how many times I've read here that the US is now a completely repressive, unconstitutional totalitarian state, I should be surprised that the US court which rejected this defense was not hit by a drone strike. That's what happens to anyone who disagrees with the NSA, right? Perhaps the rejection of the state-secrets defense is really part of some sinister NSA plot.

225 points by pvnick 13y ago

If this holds, it could be a key ruling. The government's assertions of the need for secrecy as a matter of national security in virtually everything have essentially given it carte blanche to do as it pleases AND without true oversight.

apalmer 13y ago
The NSA program has true oversight, the 'problem' is that the overseers cant be bothered to actually excersize any restraints on the program.
- mpyne 13y ago
  How do you know? If you judge just by warrant success rate, you should realize that a judge can informally reject a warrant multiple times, and only when it's finally satisfactory to the judge does it end up counting as being 'formally proposed'. Justice Kollar-Kotelly described part of the process in a WaPo story, IIRC.
rayiner 13y ago
The state secrets defense isn't all that common. It's usually used to keep weapons programs and the like secret, where we don't want to reveal the extent of our military capabilities. National security things don't get litigated that often more because nobody has standing.
- GVIrish 13y ago
  It used to not be all that common. Now it is routinely being used to prevent people from uncovering the massive and pervasive spying apparatus.
- MaysonL 13y ago
  Go look up the original SCOTUS case for the state secrets defense: it was based on Pentagon lies. There was no, repeat NO national security secret involved, merely facts which would have embarassed people and possibly ruined careers (which should probably have been ruined).
  - andrewljohnson 13y ago
    I don't think it's so cut and dry with United States v. Reynolds. Sure, the documents actually didn't contain state secrets about the B29. But then again, SCOTUS didn't examine the documents. SCOTUS is basically saying with this precedent "If the executive says it's a war secret, it's a war secret, and the tort case of some grieving family can wait for another day." So maybe we don't agree with that precedent, and we need a new law. Current precedent did not occur because SCOTUS read the docs and let the government lie, though. It occurred because the justices decided not to read the document, and instead put national security above a tort. Some stuff I read: * http://www.silha.umn.edu/news/summer2003.php?entry=200788 http://www.silha.umn.edu/news/summer2003.php?entry=200788 * http://loc.gov/law/help/usconlaw/pdf/PSQ_122_3_Fisher.pdf http://loc.gov/law/help/usconlaw/pdf/PSQ_122_3_Fisher.pdf * http://en.wikipedia.org/wiki/State_secrets_privilege http://en.wikipedia.org/wiki/State_secrets_privilege
- unclebucknasty 13y ago
  That's actually the point. The government attempted to extend the state secrets defense to cover the NSA's covert activities. But, they've been shot down by this court. Not only do they have to find new cover to justify keeping this in the dark, it also inspires the hope that some of this carte blanche activity granted by the kangaroo FISA Court (and by Chief Roberts to some extent) can be successfully challenged. And, in general, that the need for secrecy (and the activity itself) will someday need to be justified in total.
pekk 13y ago
A de facto surveillance state is created simply by the networking together of the companies which give you internet service, search service, serve all your pages, connect your VOIP calls, handle your transactions, analyse your purchases, collect health information on you, etc. And trade all your data among themselves freely. And startups are in the vanguard of all this data collection. We lost when we allowed all this data to be concentrated together in this way. We let it happen because it was done by private industry rather than the government, which we wouldn't have stood for. After we let that happen, government access to this data (by subpoena if nothing else) was a given. But even if we somehow forbade the government from using it tomorrow, it would still be accessible to these corporations and their political allies, with even less transparency and less accountability. The public doesn't know what private corporations are doing, because there is no transparency. If the public knew, it wouldn't care what they are doing, because they are understood to have carte blanche under capitalism. Corporate obligations are supposedly exhausted by making profit or looking out for stockholders. And even if the public cared about corporate surveillance, there is really nothing they could do about it, because the corporation has a 'right' to do almost whatever it wants as long as it has a strong income stream. If you care about the surveillance and its abuse in itself, you have to go much deeper than sanctioning the NSA.

mratzloff 13y ago

This would be the first step to challenging the legality of NSA wiretapping, right?

lettergram 13y ago

The idea that the government can enact laws which allow them to create secret programs/law, then allow the justice system to secretly rule on the laws is monstrous. It's as if the government can only audit itself, not external entity (the populous for example) can not review their practices. Even if this judge ruled this way, the judge above can simply overturn it. To be honest, I am against ever striking, forming/joining a union, or ever going to a rally. I feel strongly about things, share my thoughts and hope someone listens (and obviously vote), but I think this is the most ashamed I have ever been at being a citizen of a country or a human being in general. This is the only judge that has ruled this way, and I have seen plenty of other cases where the judge ruled in the opposing direction. For the first time I feel going out and protesting may be the only option (especially if this ruling is overturned).

apalmer 13y ago
--To be honest, I am against ever striking, forming/joining a union, or ever going to a rally. Aside, but why? I am too lazy to do such things myself, and I know many who don't see the need as things are good enough as they are from their perspective, but i think this is the first time i have seen an 'ideological' opposition to striking, unions, or rallying.
- lettergram 13y ago
  I am against wasting my time. I think protests are a huge time sync and in the end there will be likely nothing to show for it. Benjamin Franklin had it right when he wrote Poor Richard's Almanack, things can be achieved with a pen or a gun, holding picket signs with ~500 people outside the white house is a daily (or at least once a month) occurrence. Don't get me wrong, I would protest if I thought I could (with the help of others) achieve something, say if 30,000 people protested I could attend that if I felt strongly. The problem I have is I've never felt strong enough, nor have I ever seen a protest successful in my lifetime. The country would need to have at least several million protesters (enough to shut down the economy) to make a large impact to effect the surveillance state (at least from what I have seen).
  - 13y ago

fixxer 13y ago

I'm not going to hold my breath, but I'm very happy to see some inkling that the Constitution has not been all but completely flushed down the crapper by this and the previous administration. Any opinions on Rand Paul? I hear a lot of talk, but I'm not seeing any action.

Karunamon 13y ago
Well, since you asked.. he unfortunately holds a lot of the more distasteful stances that Ron does (in short, tyranny and rights violations is okay if exercised at the state, rather than federal level)
- redblacktree 13y ago
  This is not really an argument, just something to think about: Local government is a lot easier to affect, as a citizen.
  - fixxer 13y ago
    Agreed, so long we have mobility. The People's Republic of Chicago would charge an "exit tax" on businesses that leave if they could.
  - wavefunction 13y ago
    That could cut both ways. Easier to affect in both good or bad ways, I mean. I do agree that simply delineated systems are at least easier to understand and hold "accountable" though.
- mchusma 13y ago
  You really need to compare him to the baseline politician. In that comparison, Ron Paul in general has advocated quite a record against tyranny and rights violations, including standing up to privacy violations, government control of printing money, and conducting war to expand power and violate rights. In fact, almost the exact opposity of tyranny and rights violations. Definition of tyranny according to Wikipedia. "an absolute ruler unrestrained by law or constitution, and/or one who has usurped legitimate sovereignty" His support of state rights was always (this is my perception) based off: in theory, the constitution and in practice, the idea that government at the lowest levels (and free movement between governments) is the best way to fight tyranny and support human rights.

trestles 13y ago

Could you just PGP encrypt all your email?

fixxer 13y ago
I think you're missing the point: the metadata alone is an invasion of your privacy. Something that people don't understand is that metadata is extremely revealing, both in what it tell you about the target's activity (social habits, networks) and how it allows the analyst to build a picture of "what is normal for John Doe". None of that is the government's business according to our founders, and I'm not keen to give up more of my rights to this administration or the next one. I guess I'm a stickler, but if you study history enough, you'll be a stickler too.
- rayiner 13y ago
  The founders had zilch to say about monitoring activity or networks. You could tail people in 1789 too, and it didn't require a warrant then.
  - dllthomas 13y ago
    But you couldn't tail everyone.
    - rayiner 13y ago
      And?
      - dllthomas 13y ago
        And there is a substantive difference between surveillance and mass surveillance. It's not just a matter of degree; it's a matter of kind.
        rayiner 13y ago
        And the 4th amendment doesn't say anything about either. The fact that something is bad doesn't mean that the Constitution provides some means to make that thing illegal.

seferphier 13y ago

This is a great victory (for now)! This is why we need to separate the judiciary from the government or any politics whatsoever. I am not so confident that the supreme court would find the same ruling since the president have the power to nominate the justices. I find US practice of the Senate questioning the nominee's ideology awkward. Justices need to have permanent tenure to prevent political influences to affect their decisions.

hypersoar 13y ago
This handing was handed down by a federal district court. The judges on that court are appointed by the President, confirmed by the Senate, and serve for life. Moreover, the Senate routinely blocks their appointment for political reasons. So what distinguishes them from SCoTUS justices in this sense?

zaroth 13y ago

Preaching to the choir, but this is why whistle blowers are especially important; The ruling rejected the state-secrets argument. “Given the multiple public disclosures of information regarding the surveillance program, the court does not find that the very subject matter of the suits constitutes a state secret,” Judge Jeffrey White wrote in the ruling. Everyone "knew" the NSA was wiretapping everything, but until Snowden leaked the docs, lawsuits like this were regularly shut down under 'state secret' doctrine. I don't exactly have high hopes for how it will turn out, but at least now perhaps we'll one day see Robert's tortured reasoning for why he let this happen.

pekk 13y ago

Given how many times I've read here that the US is now a completely repressive, unconstitutional totalitarian state, I should be surprised that the US court which rejected this defense was not hit by a drone strike. That's what happens to anyone who disagrees with the NSA, right? Perhaps the rejection of the state-secrets defense is really part of some sinister NSA plot.