FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case
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"The girls were crying. 'Did we do anything wrong?' they said. The men said no and pushed them away out the door with the ends of their clubs. 'Then why are you chasing us out?' the girls said. 'Catch-22,' the men said. 'What right do you have?' the girls said. 'Catch-22,' the men said. All they kept saying was 'Catch-22, Catch-22.' What does it mean, Catch-22? What is Catch-22?"
"Didn't they show it to you?" Yossarian demanded, stamping about in anger and distress. "Didn't you even make them read it?"
"They don't have to show us Catch-22," the old woman answered. "The law says they don't have to."
"What law says they don't have to?"
"Catch-22."
http://en.wikipedia.org/wiki/Yossarian#Snowden
Captain Korn gives to General Dreedle is that Snowden died in one uniform, and his remains were soaked into Yossarian's, and all of Yossarian's other articles of clothing were in the laundry. General Dreedle says "That sounds like a lot of crap to me." Yossarian replies, "It is a lot of crap, sir."
If the CIA wanted to do some useful domestic spying it would be far more beneficial to do their operations on these people. They are clearly a larger threat to democracy than any mere terrorist could ever be, and they are already INSIDE the system.
What an absurd concept and a sad place for the US to be.
The only way to make a secret law is to have everyone agree on the merits for keeping the law secret.
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?
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.
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.
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/ for verification.
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.
The ID was purportedly required by the TSA, not by the airlines. And so cannot be justified on the right of the airline to set rules that they want as a private entity.
No, it was shifted as part of the general shift of security responsibilities to the TSA so that the airlines (who don't have sovereign immunity) wouldn't be responsible for future security incidents, that would instead be the responsibility of the TSA (who does enjoy sovereign immunity except to the extent Congress chooses to waive that immunity.)
For example, this law was secret from 2002 to 2009:
http://www.guardian.co.uk/world/2009/apr/16/torture-memos-bu...
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.
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.
This is obviously a problem for people who wish to be law-abiding citizens if the laws themselves are secret.
Having too many laws for a single individual to keep track of can be nearly as good as having secret laws, when it comes to keeping people ignorant of the law, and thus making it easy for the government to persecute anyone they don't like by prosecuting them.
I read once about a defense attorney who played a game while riding along with a police officer. They would follow a car, and the policeman would win if he could point out a legitimate reason for which he could make a traffic stop, if he was so inclined.
The officer won every time, usually within a few blocks.
I saw a video [1] which noted that possession of a lobster can be illegal: "It doesn't matter if he's dead or alive. It doesn't matter if you killed it or it died of natural causes. It doesn't even matter if you acted in self defense! Did you know that? Did you know it could be a federal offense to be in possession of a lobster? Raise your hand if you did not know that. [audience raises hands] There's the problem!"
I don't think this situation is due to a conspiracy to take away our freedoms, on the principle that we needn't ascribe malicious intent when mere laziness and incompetence will suffice. Basically the law is a codebase with lots of sometimes-circular dependencies, which isn't refactored nearly aggressively enough, so the cruft accumulates. Taking into account that in the US the "initial commit" is hundreds of years old [3], there are ~50 forks, and it's still a fast-moving target, it's not surprising that the sheer amount of complexity is more than any one person can appreciate; even after decades of study and practice, AFAIK even the best professional lawyers are basically ignorant of the law in other specializations, and even within their own specialization they sometimes need teams of lawyers and paralegals poring over legal texts to find out exactly what the law says about their particular case.
[1] The quote occurs at about 6:55 [2] in http://www.youtube.com/watch?v=6wXkI4t7nuc
[2] The entire video is witty and informative, and it's something that everyone should watch at least once.
[3] Maybe it's more like thousands of years old -- if you go back through English law, there are probably things that go back to the Norman conquest in 1066, or Roman Britain even earlier.