
White House Tries to Prevent Judge From Ruling on Surveillance Efforts - rosser
http://www.nytimes.com/2013/12/22/us/white-house-tries-to-prevent-judge-from-ruling-on-surveillance-efforts.html?_r=0
======
pvnick

      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...](http://en.wikipedia.org/wiki/State_secrets_privilege#Supreme_Court_recognition_in_United_States_v._Reynolds)

[2]
[http://en.wikipedia.org/wiki/State_secrets_privilege#cite_no...](http://en.wikipedia.org/wiki/State_secrets_privilege#cite_note-
Carrie_Newton_Lyons-1)

~~~
DannyBee
"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.

~~~
rayiner
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.

~~~
DannyBee
"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.

~~~
wavefunction
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 ;)

~~~
DannyBee
"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.

------
salient
EFF is doing such amazing work with these lawsuits. I hope people remember to
help them out and donate:

[https://supporters.eff.org/donate](https://supporters.eff.org/donate)

You could also help this campaign for privacy tools which NYT and many other
journalists are going to need from now on, to reach its goal:

[https://pressfreedomfoundation.org/](https://pressfreedomfoundation.org/)

~~~
rz2k
One extremely easy way to donate is Amazon Smile [1]

With the Firefox[2] and Chrome[3] extensions you automatically access Amazon
through the Smile portal so that Amazon makes a donation equal to 0.5% of all
your purchases to the charity you chose. Even if you spend $10,000 that only
comes out to $50, but it's a start.

[1]
[http://smile.amazon.com/gp/charity/change.html](http://smile.amazon.com/gp/charity/change.html)

[2] [https://addons.mozilla.org/en-
US/firefox/addon/amazonsmilere...](https://addons.mozilla.org/en-
US/firefox/addon/amazonsmileredirector/)

[3] [https://chrome.google.com/webstore/detail/smile-
always/jgpmh...](https://chrome.google.com/webstore/detail/smile-
always/jgpmhnmjbhgkhpbgelalfpplebgfjmbf?hl=en-US) OR
[https://chrome.google.com/webstore/detail/amazon-smile-
redir...](https://chrome.google.com/webstore/detail/amazon-smile-
redirect/dejndilpaooedcdalbciiopmdoepgeee)

------
Theodores
This is great - they are making it worse for themselves!

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!)

~~~
sparkie
The "protect the children" card. It's already in full use in the UK, with
mandatory opt-out porn filtering.

~~~
dobbsbob
Canada also tried this card unsuccessfully. Lately they've been trumping up
phony terrorist busts where they groom crazy people online and sell them inert
explosives, then never stop talking about how great their anti terrorist
squads are for breaking up plots they themselves plotted

------
amark
Basically what they're saying is "we're ok with subverting the constitution if
it fits our needs".

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.

~~~
babesh
The 3 branches of government were for settling disputes between those in
power, not for those without power.... without all out war. If you look at
history, look at the division of new states into equal portions of slave and
non slave prior to the Civil War. Balance of power between Northern
trading/industrial interests and Southern plantation ones. In this case, the
countervailing power are businesses that cannot sell overseas because of this.
So if anything changes, focus on external software versus domestic where they
already have you over a barrel.

------
joering2
_“Disclosure of this still-classified information regarding the scope and
operational details of N.S.A. intelligence activities implicated by
plaintiffs’ allegations could be expected to cause extremely grave damage to
the national security of the United States,” wrote the director of national
intelligence, James R. Clapper Jr._

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.

~~~
mitchty
Keep in mind he's not being promoted, he's the fall guy if things go south.
Basically he's being setup to be the lightning rod if things go bad.

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.

~~~
mikevm

       My take on the tea leaves is that they now realize that Snowden has been saving the best for last (or later).

Snowden is not leaking anything. He leaked most of what he had a long time
ago, and now the documents are in the journalists' hands.

------
patrickmay
"In every stage of these Oppressions We have Petitioned for Redress in the
most humble terms: Our repeated Petitions have been answered only by repeated
injury. A Prince, whose character is thus marked by every act which may define
a Tyrant, is unfit to be the ruler of a free people."

------
oelmekki
Terrorism has won.

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.

~~~
e12e
I'm afraid this all dates back further than 12 years (eg: see Binning at hope
9). There's little evidence the true motivation was to defeat terrorism (if
for no other reason than domestic terrorism falls under the fbi, not nsa --
and is and has been arguably the bigger threat).

~~~
tinfoil007
William Binney's keynote at HOPE 9:

[http://www.youtube.com/watch?v=dxnp2Sz59p8](http://www.youtube.com/watch?v=dxnp2Sz59p8)

all talks:

[http://www.hopenumbernine.net/schedule/](http://www.hopenumbernine.net/schedule/)

~~~
anoncowherd
"I played a central role in setting up this all-encompassing surveillance, but
_now_ that it's been in operation for years, I realize it could be used for
_naughty_ things. It's time to blow the whistle on this!"

Binney's case is interesting, to say the least.

------
atmosx
> _But the government said that despite recent leaks by Edward J. Snowden, the
> former N.S.A. contractor, that made public a fuller scope of the
> surveillance and data collection programs put in place after the Sept. 11
> attacks, sensitive secrets remained at risk in any courtroom discussion of
> their details — like whether the plaintiffs were targets of intelligence
> collection or whether particular telecommunications providers like AT &T and
> Verizon had helped the agency._

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?

------
mabhatter
As President he's "supposed" to fight for this, even if it's crap. That's how
our "adversarial" government works. That's why it's CHECKS... As in gloves
off, missing teeth, hockey checks.

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!

~~~
Malician
In the case of DOMA, Justice Scalia noted that, if Obama thought DOMA was
unconstitutional, he could simply refuse to enforce it.

[http://www.law.cornell.edu/supremecourt/text/12-307#writing-...](http://www.law.cornell.edu/supremecourt/text/12-307#writing-12-307_DISSENT_5)

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?

~~~
rtpg
Where exactly is it said in there? I'm having a hard time finding something
that means that. And in a more general sense, isn't the executive bound to
laws passed by congress?

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.

~~~
Malician
Sorry for the delay.

"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."

------
scotty79
"You can't outlaw this beacuse it's super secret" defense.

------
thinkcomp
The actual case dockets and documents can be found here:

Jewel v. NSA -
[http://www.plainsite.org/flashlight/case.html?id=1911200](http://www.plainsite.org/flashlight/case.html?id=1911200)

Shubert v. Obama -
[http://www.plainsite.org/flashlight/case.html?id=1901515](http://www.plainsite.org/flashlight/case.html?id=1901515)

------
babesh
Obama is a politician: someone who says anything to get elected and once
elected does what he wants instead of what he said he would do. A politician
tries to amass power. Information is power. There is NO way the government
would give up that power. Don't expect him to do anything nor should you
expect most politicians nor the next administration.

------
RexRollman
There really is nothing the government won't do to keep its illegal
surveillance powers.

~~~
drcube
Yeah, does anybody think this will actually stop, even if the courts demand
it?

------
samgranieri
James Clapper needs to be fired

~~~
CamperBob2
He needs to experience the same treatment I would experience if I lied to
Congress. This treatment would go quite a bit beyond being fired.

~~~
sneak
[http://www.hasjamesclapperbeenindictedyet.com](http://www.hasjamesclapperbeenindictedyet.com)

------
aluhut
I'm curous. Could someone tell me how the republicans feelings are towards all
this? Are they doing something? They are in some way in a bad position. Much
of the stuff has been established under Bush but on the other hand they
pretend to "protect the constitution" and of course they don't like Obama.

~~~
joelgrus
It varies, the "national security Republicans" are all for the surveillance,
e.g.

[http://www.politico.com/blogs/politico-live/2013/12/mike-
rog...](http://www.politico.com/blogs/politico-live/2013/12/mike-rogers-
defends-nsa-data-collection-180105.html)

whereas the "libertarian Republicans" are just as strongly against it, e.g.

[http://www.mlive.com/news/grand-
rapids/index.ssf/2013/12/ama...](http://www.mlive.com/news/grand-
rapids/index.ssf/2013/12/amash-backed_bill_aimed_to_end.html)

~~~
ScottBurson
It really is an issue that cuts across party lines. I've found that people of
a libertarian bent get offended when I suggest this. If they're Republicans,
they think that the GOP is the bastion of liberty and the Democrats are the
authoritarians. If they're Democrats, it's the converse. But it seems to me
that the issue is pretty close to orthogonal to party affiliation.

One example is California's two senators: both Democrats, but Feinstein is
famously authoritarian, while Boxer AFAIK tends in the other direction.

