Comment by pvnick | Hacker News Reader

Comment by pvnick | Hacker News Reader

  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.

It's almost funny to see the administration's hypocrisy on full display. They seem to think that if they keep pushing this issue under the rug that it'll just go away. The Obama administration wants to have its cake and eat it to. On one hand, Obama wants to retain support from the folks who elected him to dismantle these abuses, so he sets up an "advisory board" to "investigate" the reports. On the other hand, he remains silent while his staff lies to congress, and he rejects the recommendations by the review panel.

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...

I hope the administration's lawyers just walked into a trap.

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.

I see this a lot in NSA topics about how some new legal challenge might reverse NSA activities... Why does anyone think this will work? The NSA is accountable to the executive. The executive is responsible for enforcing laws but can selectively enforce... Why would it limit it's own power?

Checks and balances. The NSA is funded by Congress. Congress needs the courts in order for their legislation to have any effect.

Intelligence agencies have a history of attempting to circumvent the limitations imposed by funding. There's a lot of evidence that the CIA has been involved in drug trafficking. In the case of the NSA, it could for example sell some of its intel to the private sector (technical and business information concerning rival companies).

So what do you think it is in this case? Front running? Or a more esoteric form of market manipulation?

Bitcoin, obviously.

that's the long game. the KGB basically became the Russian Mafia when the USSR went under. maybe the NSA's thinking ahead too.

Not a lawyer but one reason may be that the activities are in a legal grey area where they have secret interpretations of laws. They work hard to keep cases that involve these interpretations out of the courts because as soon as a judge declares it illegal they must stop. Kind of like asking for forgiveness rather than permission.

State secrets doctrine was just tacitly upheld a couple of years ago in General Dynamics. I don't think the Supreme Court is willing to entertain a challenge to the doctrine any time soon.

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.

"They seem to think that if they keep pushing this issue under the rug that it'll just go away."

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.

"I'm optimistic."

Don't be. The supremes have made it clear as recently as last year they have little to no interest in this one.

do you not think that the revelations in the last year might change that?

I don't see Roberts embracing a reading of the state secrets privilege that essentially makes these sorts of constitutional claims unreviewable. What was on the line in both Reynolds and General Dynamics was money. The justices were quite pointed about this in General Dynamics, accusing the company in oral arguments of just being greedy, etc. The assertion of the privilege in at least some of the NSA cases raises countervailing issued that didn't exist in Reynolds and GD. If the Court does decide to take up the issue, I think the government will find the privilege less helpful than they might wish.

edit to my other comment: Reynolds wasn't a contract action, but a tort action, but what was essentially on the line was damages.

"I don't see Roberts embracing a reading of the state secrets privilege that essentially makes these sorts of constitutional claims unreviewable."

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.

Roberts is actually the one Supreme Court Justice heavily involved in the FISA court, as he is responsible for appointing the Federal judges that sit on its bench.

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 ;)

"Roberts is actually the one Supreme Court Justice heavily involved in the FISA court, as he is responsible for appointing the Federal judges that sit on its bench."

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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