White House Tries to Prevent Judge From Ruling on Surveillance Efforts
nytimes.com
nytimes.com
So, [Clapper] said, he was continuing to assert the state
secrets privilege, which allows the government to seek
to block information from being used in court even if
that means the case must be dismissed.
We'll need someone like rayiner to weigh in (I have almost zero legal expertise), but some wikipedia reading says that while the state secrets privilege was recognized by the supreme court, the government's case was later found to be fraudulent [1]. Clapper's assertion is such a glaring abuse that I would hope it could set up another supreme court challenge to the privilege. More wikipedia-ing seems to suggest that might be possible [2].
I'm optimistic. The parties who have a stake in the surveillance apparatus have been on the defensive now for half a year, and it's obvious they're losing ground (example FTA: "Still, Mr. Clapper’s description of the program as 'an important tool' for tracking possible plots was a downgrade in rhetorical urgency. In earlier, now-declassified court filings, he and other officials had portrayed it as 'an essential tool.'"). I do actually have hope that we could see some real reforms, and for someone like me to say something like that is a big deal.
[1] http://en.wikipedia.org/wiki/State_secrets_privilege#Supreme...
[2] http://en.wikipedia.org/wiki/State_secrets_privilege#cite_no...
That's definitely a time-honored political ploy, but it doesn't look like this issue will go away any time soon since most of Snowden's massive cache of information hasn't been published yet. As more NSA documents come to light, this will keep generating new headlines. It's likely to still be in the news during the next presidential election.
Ordinarily, when the government asserts its state-secrets privilege (which dates only to the 1950s), a judge privately reviews the evidence to see whether it seems plausible that proceedings would reveal state secrets.
Now that the admistration has asserted its secrets privilege in this case, the appellate court can very appropriately circumscribe the privilege, ruling that it cannot be asserted to prevent a challenge to activities that appear unconstitutional, prima facie, under the private review that is already required.
That would be a great outcome, one that might not only roll back the NSA's surveillance programs, but also reinvigorate our most important check on executive power.
That said, state secrets doctrine is not a get out of jail free card. Both General Dynamics and Reynolds were contracts cases. There was no allegation that the government was exceeding the scope of its domestic powers. Dismissing a case on state secrets grounds has a separation of powers implication when the government invokes the privilege in the face of allegedly unconstitutional activity than when it invokes it in a contractual dispute. Historically, the courts have given much more scrutiny to claims of national security privileges when such claims prevent them from reviewing Constitutional questions. Especially in this context where the cat is already out of the bag.
Don't be. The supremes have made it clear as recently as last year they have little to no interest in this one.
edit to my other comment: Reynolds wasn't a contract action, but a tort action, but what was essentially on the line was damages.
Roberts didn't seem all that interested in Amnesty vs Clapper, which, while not a state secrets claim, is, IMHO, not going to be all that wildly different in terms of ideological breakdown.
In fact, they even went so far as to say "Second, even if respondents could demonstrate that the targeting of their foreign contacts is imminent, they can only speculate as to whether the Government will seek to use §1881a-authorized surveillance instead of one of the Govern- ment’s numerous other surveillance methods, which are not chal- lenged here."
Which is just, IMHO, beyond throwing the government a bone and going whole hog into crazy land on government surveillance.
I'm aware of the aftermath of the oral arguments/opinion on clapper, and I could see SCOTUS taking something on because the government kinda screwed them on parts of the opinion, but I have a lot of trouble believing the court is going to be all that receptive, state secrets claim or not.
See how this represents a Mexican standoff where every branch of the US government is complicit? I think the American people are going to have to offer Amnesty to one of the 3 branches to get them to roll over on the other two ;)
I doubt he really wants this, actually (and I believe he's said as much). It's simply what congress made law, so he does it.
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Before the Snowden revelations came along nobody took you seriously if you thought we lived in a world of mass surveillance. Now we all know all too well that we do.
As the scandal unravels the government are clinging to the 'terrorism' fig leaf. They haven't got anything else, no other plausible excuse for what they have been up to. Nobody has completely seen through it yet, or, if they have then they haven't shared with the rest of the world exactly what it is that they are hiding. (There is something else going on, the 'al-qaeda' thing is just a ruse, however nobody really believes that it is a complete, total, utter sham of emptiness. We aren't there yet...)
They are going to have to squirm for a little bit longer before the grand reveal. Exactly who steps up to do this is not known, however, there are plenty of candidates out there, getting bolder by the day. One thing is for certain though, that grand reveal will happen and, when it does, this NSA spying lark will be put into perspective. That perspective will show the spying story so far to be nothing more than an appetizing 'light snack' before the immensely satisfying main course. Compared to what we have got coming the fall of the Berlin Wall was nothing!
Anyone care to guess what the ace is that trumps the government's 'terrorism' card? (There is one!)
I want to be optimistic, but I'm not really sold on the idea that we have the information, and that it's just a matter of time until it's released to the public.
A year ago nobody imagined that all of this Snowden stuff would come out, did they? Yet he was clearly working on something that may or may not have worked.
The mass surveillance works two ways: to learn/steal the secrets of the citizenry is one way, the other way is to hide secrets from the citizenry. Some people in government are more concerned with people talking about their secrets, their 'noble lies'. This is because, once exposed and once a cover up gets started, they face a serious existential threat. But we need a bit more public humiliation, loss of trust in the government and more silly talk about 'terrorism' to get the climate right for that. However, rest assured, there is at least one 'existential threat' in a holding pattern, just waiting for the perfect storm...
Otherwise, all I'm seeing is childish usenet style attention seeking.
As things stand there are a lot of things worth getting properly upset about - those wars in far off places, the likes of Guantanamo and the Iraq War that was started on false pretences. No heads have rolled for any of these crimes. We have all become de-humanised Good Germans, not really that bothered and incapable of organising meaningful opposition.
At least our German friends had a government that knew what was going on and were in charge of the show. We have corporate puppets that cannot think outside of the dogma provided by their respective political parties. Our elected leaders are not that powerful. Standing up to them should not be difficult in the least.
Enough time has passed since 2003 for the effect of 'either you are with us or against us' to wear off. People should not let the lies that led to 'shock and awe' be forgotten. We should be regaining our voice to say 'actually, yes, we do want those people that took the world to war on false pretences brought to court'. But this has not happened and is not happening.
With this being the case, why should anyone that knows anything really damaging to the government that we have want to damage the government? People have got the government they deserve.
However, there is also the matter of fact-based history, and an unwritten obligation to hand on to future generations a fact-based account of our times instead of mutually convenient fairy tales. There is also the matter of justice, e.g. for people in places like Guantanamo. Therefore, although most people - those with the attention span of a TV advert - have proven through their silence and submission that they don't deserve better, 'fact based history' does matter.
They are already engaged in cyberwarfare with the PRC. I haven't met anyone in the security industry that would dispute this. It doesn't generate headlines because no one has actually died. I feel eventually the need of the state will outweigh the diplomatic necessity of maintaining most favoured status with the Chinese.
The executive branch's power has gotten completely out of hand in the past decade, all under the guise of "security" and preventing "terrorism". The reason the judicial branch exists is to stop crap like this. If they can't do their job constitutional balance of power doesn't exist.
I am really getting sick and tired of listening to this dirtbag scum motherfucker. He lied to the congress (willfully knowing upfront what the questions would be), something you or me would be behind bars for 10 years at least, but yet Obama promotes him to oversee NSA program. What a joke.
Note the new talk about possible pardons. My take on the tea leaves is that they now realize that Snowden has been saving the best for last (or later). And that he's only revealing whats needed to effect change. If they don't start damage control the right way Clapper is going to be thrown under a parked bus as fast as the media can spin it.
As soon as the bad stuff comes out Clapper is going to get to be the fall guy. He won't get replaced until something bad gets revealed. Then a "reformer" will be brought in. Least that would be the PR way to approach it. Not sure it'll work in this case but old tricks are the best tricks.
Course I could be wrong, eh we'll see.
My take on the tea leaves is that they now realize that Snowden has been saving the best for last (or later).Twelve years later, the country that was so proud to be "leader of the free world" is now affected by a cancer named secrecy and defiance ; defiance from government toward people and defiance from people toward government (well, that last part is not new, but it's not baseless anymore, which make a huge difference).
US should definitely work on trust, especially because their main strength is business and that can't exist without trust.
http://www.youtube.com/watch?v=dxnp2Sz59p8
all talks:
Binney's case is interesting, to say the least.
It was never about terrorism. In fact, governments like terrorism because it gives them an excuse to grab more power and strip people of their liberties. The surveillance is about control, power and maintaining it. It's meant to be used against the general populace.
The war on drugs is a big part of that. But other things are too, things that people still have a hard time grappling with intellectually. Labor laws and the welfare state, for example, tend not to actually benefit those at the bottom, they tend to benefit those at the top, no matter the intentions. But in the meantime, a lot more of our money is taken under government control, and a lot more of our daily activities as well. Our country may one day rediscover the value of liberty, but for now it's still a huge messy muddle.
The only one who THINKS that it is unknown whether AT&T and Verizon were obliged by the government to hand over data is the government[1].
I remember when Wikileaks released the cables and US government employees were not allowed to read them. The rest of the world, was reading them anytime though.
In the world of governance I'd expect rationale to be above everything else. Apparently that's not the case in today's world. USA it's just another example, in Greece where I live, common sense has long been gone by politicians and population...
[1] However, there is a minor detail here. If this fact gets court proof, maybe some government members would be in terrible trouble. They can always mention National Security but God forbid, what if they have to bring proof?
It's up to the other TWO BRANCHES to get off their lazy asses and knock the Executive branch down a peg or two. They liked blaming the President but they gotta do the WORK to take things back. Shut up and FIGHT!
http://www.law.cornell.edu/supremecourt/text/12-307#writing-...
Doesn't this suggest that it is, to some extent, the President's responsibility to maintain his own branch?
Or do you think Scalia is wrong in both cases?
Slightly off-topic, but the fact that Justice Scalia doesn't believe that the Supreme Court has the right to judicial review. An interesting concept to me.
"This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitu- tional, see Presidential Authority to Decline to Execute Un- constitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law."
Checks and balances prevent abuses by other branches, but it's not like a courtroom, it's still possible for everyone to get along and be nice and open with each other. Indeed, that's expected to be the typical behavior except in unusual circumstances.
Jewel v. NSA - http://www.plainsite.org/flashlight/case.html?id=1911200
Shubert v. Obama - http://www.plainsite.org/flashlight/case.html?id=1901515
http://www.politico.com/blogs/politico-live/2013/12/mike-rog...
whereas the "libertarian Republicans" are just as strongly against it, e.g.
http://www.mlive.com/news/grand-rapids/index.ssf/2013/12/ama...
One example is California's two senators: both Democrats, but Feinstein is famously authoritarian, while Boxer AFAIK tends in the other direction.
It is absolutely astonishing to me that so many conservatives defend mass surveillance. As for the laws being established under Bush, I don't actually see that as a factor in many people's minds. I find that many conservatives hardly consider Bush to be an exemplary Republican and thus aren't ashamed to criticize his presidency. Many of his policies were so contradictory to the core conservative philosophy (education reform, surveillance, Patriot Act).
Of the conservatives in my area, I'm hearing everything from people who care a lot all the way to people who have no idea there were leaks. Which, it is important to note, is what makes this issue so strange. From what I can tell, the same has happened in the Democratic party. Crazy!