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A federal appeals court in New York will hear oral argument on Tuesday in the ACLU's lawsuit fighting for the public's right to know the legal justifications for government spying.
The Freedom of Information Act suit seeks the release of secret memos written by government lawyers that provided the foundation for the warrantless surveillance of Americans' international communications. In essence, these memos serve as the law that governs the executive branch. By withholding them, the government is flouting a core principle of democratic society: The law must be public.
The memos cover the government's legal interpretations of Executive Order 12333 [(EO 12333)], which was issued by President Ronald Reagan in 1981. It's the primary authority under which the NSA [(National Security Agency)] conducts surveillance, and it encompasses an array of warrantless, high-tech spying programs. While much of this spying occurs outside the United States and is ostensibly directed at foreigners, it nonetheless vacuums up vast quantities of Americans' communications. That's because in today's interconnected world, communications are frequently sent, routed, or stored abroad — where they may be collected, often in bulk, in the course of the NSA's spying activities.
For example, the NSA has relied on EO 12333 to collect nearly 5 billion records per day on the locations of cell phones, as well as hundreds of millions of contact lists and address books from email and messaging accounts. It also intercepted private data from Google and Yahoo user accounts as that information traveled between those companies' data centers located abroad.
Related: DOJ Made Secret Arguments to Break Crypto, Now ACLU Wants to Make Them Public
(Score: 1) by khallow on Thursday December 06 2018, @07:25PM (7 children)
Not that different at all. A regulation which requires a security clearance to learn is by definition a secret regulation. And being tried in a court where one needs a security clearance in order to even know the trial exists? That's a secret court. Such a system should be illegal.
(Score: 2) by All Your Lawn Are Belong To Us on Thursday December 06 2018, @11:17PM (6 children)
Being tried in a court where one needs a security clearance in order to even know the trial exists is indeed a secret court. That's not what's under question here. We KNOW the proceeding exists - we have the news story. The trial isn't secret. The law isn't secret. The regulations (and evidence itself) may be, but those regulations do have to conform to the public body of law. I don't like secret regulations, but I can accept for the sake of argument that it may be bad for those "genuinely" targeted by those regulations should not necessarily have knowledge of it. Any more than a mob boss or crooked politician should be informed that he or she has a sealed wiretap order against him or her. So far it reads like the court is indeed authorized to question the regulations. So what do you mean by a secret trial?
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(Score: 1) by khallow on Friday December 07 2018, @12:34AM (5 children)
Actually, it is one of the problems here.
That's only after an FOIA request. We wouldn't have known otherwise. That leads to the obvious point. What other court activities, including trials, are we not hearing about?
If we don't KNOW those regulations conform, then how do we determine they conform? It's a shell game with the pea assumed to be under the shell. But will it be there when we finally get a chance to look?
And yet, there's been all sorts of games played with this (including spying on Trump's campaign [floridatoday.com]). That link outlines a really sloppy justification for a warrant. And we have a long history of such shenanigans.
"is indeed authorized to question" != questioned. I think this story [dailydot.com] is enlightening.
(Score: 2) by All Your Lawn Are Belong To Us on Friday December 07 2018, @04:53PM (4 children)
Aside from the issue of military tribunals for those at Gitmo, show me one place where a "secret trial" occurred. (And sophistry that you wouldn't know about it because it's secret doesn't count). Extraordinary renditions occur, court records are sealed for proper reasons frequently. Warrants are issued which the subject do not know about. None of these are secret trials.
No, you can speculate all you want to. You're guessing without proof of anything. What about the secret Martian base on the far side of the Moon that is broadcasting brain control rays at Trump, Kim Jong-un, and Nancy Pelosi? Prove that those don't exist!
And the point is that FOIA requests DO exist. And members of Congress are indeed read into these programs. And people like Edward Snowden exist, who really should be pardoned. And finally, this is all different from what Secret Courts are where people are Disappeared and Never to Be Seen Again but a judiciary is involved, or a government officially executes a sentence (think Kashoggi).
How do YOU know what even public regulations actually do in practice if you aren't following around the government employees making sure they do them? Where's your law degree that allows you to interpret those regulations? The answers are that you trust that the lawyer-reporter-judge-Congress-President-suit filer are in the know, the same as with public laws. And yes, it will be there when the people with appropriate clearance - who do NOT have to be sympathetic, only cleared - are read into them. I won't say that destruction of records can't occur, but it is becoming harder to make these things happen outside the direct influence of the TLA's internally. EO's are West Wing documents - show me the last time since Nixon's 18 minutes that critical West Wing documentation was destroyed, let alone an EO. I await a time when, because all being paid for is digital storage, that destruction of records are no longer permitted whatsoever. Though I will give you points that Trump is doing his damndest to pull security credentials away from people because he equates loyalty to the country with loyalty to him personally, and his has been called out on the carpet for it and will continue to be so. That's not something any President has dared do before, and it is wrong.
Depends on what source you want to believe - "sloppy" is a subjective value judgment. And doesn't address that there are indeed legitimate reasons to seal warrants. That an allegation comes from an opposite political party member does not constitute poison fruit any more than a narc using a drug user or trafficker as a source in a warrant. Motive to poison isn't poison in and of itself. And the article you cite is just as partisan as any.
If there was any crime (beyond those who've plead guilty in his Administration - giving credence that there WAS in fact something to find there), perhaps it was when Trump started broadcasting from the rooftops information that was handed to him in confidence about members of his staff - and the bombast couldn't even get that information right.
I used to think that. Now I'm not sure. Because I've also read that such warrants are not just submitted to the court, the way they would be in other venues. "Here's my warrant judge - approve it or deny it!" Instead drafts of the warrants are pre-submitted for review. Thus, those that have no standing are never officially submitted to the judge for signature. That is aside from since the procedure is different then a different standard might be used to actually target it. Metaphorically this measure is counting the number of cars that rolled off the assembly line, where the rest of the system is measured by the number of cars that had defects in manufacturing.
And, of course, if we don't trust the elected officials who are authorized to question such information, there's a simple remedy for that. That we won't collectively do so... isn't that our fault as the public?
These things aside, you still get
This sig for rent.
(Score: 1) by khallow on Friday December 07 2018, @05:54PM (3 children)
Well, there are those military tribunals as you so helpfully provided. And yes, if there are other secret trials going on, you're not going to hear about them.
Do all 340 million citizens in the US need to follow each and every "public" regulation? Plus, I don't trust them to follow regulation that is being created faster than it can be read. Nor should you.
And? We still know there are problems with the system that only came out when Snowden leaked the details. Why again should we trust a system that only fixes problems in their secret court system when someone commits a felony and brings the problems to light?
(Score: 2) by All Your Lawn Are Belong To Us on Friday December 07 2018, @11:14PM (2 children)
Yep. Military tribunals... as in, military action, not judicial, even if they follow rules of jurisprudence. And no, I don't agree with them. And yet we know about them. We know a lot about many of the defendants. But I'm not defending them - I am holding them up as examples by which U.S. Citizens should not be judged and would agree that those persons held by them should indeed either be released back to their home countries or tried in open court.
Now, you'll share with me which U.S. Citizens have gone through secret trials on account of regulatory orders not in public view? Or even those in public view?
Well, how else will you know if regulations are being followed if you personally are not aware of all of them?
Yep. And my point is that here's better proof than any about whether there exist secret regulations which are actually illegal: People will leak, even at cost to themselves. It is sad that it might take that, but there it is.
By the way, as much as I admire Snowden... what actually illegal actions did he uncover again? As in, what public laws have now conclusively proven to have been broken by his revelations? He gave the information up, so we should certainly be able to figure out which public laws have been broken by the conduct, right?
Now, as to why I'd trust a government that does these things.... Because you haven't provided a better answer yet, only criticized what's currently going on with speculation. Please do enlighten me as to how you would protect national security without secrets? Or enable legitimate uses of intelligence gathering without ever taking in communications of U.S. citizens? My guess is that you cannot. Because better brains than you or I - and you do indeed have a great brain - have tried. But we can keep trying. Show me first, though, how the system gets better before I'll support ripping down what we've got now.
Back at you: Why are you willing to tear down a system without showing what will replace it? In my experience that leads to worse outcomes.
This sig for rent.
(Score: 1) by khallow on Saturday December 08 2018, @01:24AM (1 child)
I suggest the regular court system as the replacement.
A better answer - don't fund those things and you don't have to worry about what they're doing.
(Score: 2) by All Your Lawn Are Belong To Us on Thursday December 13 2018, @07:35PM
So you'd rather have electronic surveillance to be the purview of any judge anywhere in the country instead of a select few, centralized in a way that Congress can directly monitor. It wouldn't change that every such request would be sealed as classified/confidential - they would be. I disagree that this would be preferable. So did the Church committee when they recommended the FISC system be created because it's easier to monitor one central court and 11 judges than 673 district court judges and if one district court judge would refuse then they could shop it on to the next one.
No, you'd have to worry about every single court in the country being used as an unethical/immoral/illegal outlet for surveillance. Or if you're suggesting that America shouldn't gather intelligence... interesting notion and will not occur short of armed revolt. Because of that, it's more a question of control and not whether or not such tools would be used. They will be. So let's try and find something that might actually work. Like the current system, imperfect as it is.
This sig for rent.