
NYTimes Sues US For Refusing To Reveal Secret Interpretation Of Patriot Act - there
http://www.techdirt.com/articles/20111010/04043716279/nytimes-sues-federal-government-refusing-to-reveal-its-secret-interpretation-patriot-act.shtml
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Sukotto
Iirc, Gilmore v Gonzales showed that the government can have secret laws. I
can see the administration believing that it's also ok to have a secret
interpretation of a law.

I personally _strongly_ disagree with both of the above but don't see how I
can change anything by arguing about it. [1]

[1] <http://www.paulgraham.com/say.html#Pensieri-Stretti> (pg, please put
anchors in your essays)

\--

[edit to add]

<http://en.wikipedia.org/wiki/Gilmore_v._Gonzales>

~~~
potatolicious
TIL I am expected to be aware of, and follow, a law that I cannot see.

Someone stop this ride, I want to get off now.

~~~
ubernostrum
Well... that's a really bad way to characterize the case.

First off, this is not a "law" in the sense most people think of; it wasn't
passed by Congress and signed by the President. Rather, it's a directive
issued by a federal agency, which has powers granted by Congress to issue
directives and -- when deemed necessary for security purposes -- to keep the
exact details of those directives from being disclosed.

There's nothing particularly new in that, by the way; governments, even
governments of countries which would by any standard be considered "free",
have long exercised the power to enforce security-related policies without
disclosing the details of those policies to the public at large.

Second, Gilmore's case specifically ran into trouble because A) he was
informed multiple times, as all air passengers are, of policies regarding ID
and B) he was also informed that a process exists for flying without
presenting ID, and voluntarily chose not to use that process (this is what
really sunk his case).

Third, even if there were no government-issued policies specifically requiring
passengers to present ID, there are multiple agencies who would have the power
to deny licenses to any airline which did not have -- as a condition of the
contract between passenger and airline, represented by the ticket -- a
requirement of presenting ID to check in. And, frankly, I don't think anyone
would try to argue that down if it happened; such policies already exist and
are widely accepted with respect to age-restricted products like alcohol.

~~~
wnight
> First off, this is not a "law" in the sense most people think of; it wasn't
> passed by Congres

s and signed by the President. Rather, it's a directive issued by a federal
agency, which has powers granted by Congress to issue directives

So in other words it's as good as a law, but without any safeguards and
consequently no value to the public.

> Gilmore's case specifically ran into trouble because A) he was informed
> multiple times, as all air passengers are, of policies regarding ID and B)
> he was also informed that a process exists for flying without presenting ID,
> and voluntarily chose not to use that process (this is what really sunk his
> case).

Oh, of course he has no rights - they informed him of it. Well then, who could
argue?

> Third, even if there were no government-issued policies specifically
> requiring passengers to present ID, there are multiple agencies who would
> have the power to deny licenses to any airline which did not have -- as a
> condition of the contract between passenger and airline, represented by the
> ticket -- a requirement of presenting ID to check in.

Almost total corruption being used to enforce secret laws. Check.

> And, frankly, I don't think anyone would try to argue that down if it
> happened; such policies already exist and are widely accepted with respect
> to age-restricted products like alcohol.

That makes less sense than anything else you've said. How does age-related
restrictions on alcohol relate to ID requirements for flying? Flying isn't
dangerous for the young like rampant drinking is.

~~~
ubernostrum
_So in other words it's as good as a law, but without any safeguards and
consequently no value to the public._

If you'd like to create a society in which every enforceable rule must pass
through multiple bodies for approval, feel free to try it.

 _Oh, of course he has no rights - they informed him of it. Well then, who
could argue?_

He was informed of the requirement, and of an alternate process which would
not require him to present ID. The comment I was responding to apparently
meant to imply that this was a law of which the public was unaware, and that
violators would only be informed of what they had done after the fact.

And while I dislike the TSA and "post-9/11" "security" measures as much as the
next person, I don't believe that enforcing a simple security measure equates
to total loss of rights. But then...

 _Almost total corruption being used to enforce secret laws. Check._

Wild hyperbole. Check.

 _How does age-related restrictions on alcohol relate to ID requirements for
flying?_

I cannot purchase alcohol without presenting ID. I cannot fly without either
presenting ID or going through a screening process.

Interestingly, both involve reasoning based on public safety, and in neither
case is there a law passed by Congress which directly enacts the requirement.

~~~
wnight
>> So in other words it's as good as a law, but without any safeguards and
consequently no value to the public. > If you'd like to create a society in
which every enforceable rule must pass through multiple bodies for approval,
feel free to try it.

Actually, yes. You'd have to be crazy to suggest otherwise. Think of it,
"Enforceable rule". Not just something in this circumstance, but a rule, and
enforceable. That's exactly what oversight is for.

But I was talking about safeguards. Any rule is worthless without knowing when
to stop applying it. Who's watching for it to go wrong? Nobody of course
because it doesn't really exist.

>> Oh, of course he has no rights - they informed him of it. Well then, who
could argue? > He was informed of the requirement, and of an alternate process
which would not require him to present ID. The comment I was responding to
apparently meant to imply that this was a law of which the public was unaware,
and that violators would only be informed of what they had done after the
fact.

It is a requirement the public is (mostly) unaware of. And because it's
unspoken policy instead of a law it'll likely stay that way.

> And while I dislike the TSA and "post-9/11" "security" measures as much as
> the next person, I don't believe that enforcing a simple security measure
> equates to total loss of rights. But then...

It's not a security measure because it doesn't help security at all. Enforcing
useless rules is a loss of your rights.

>> Almost total corruption being used to enforce secret laws. Check. > Wild
hyperbole. Check.

Not at all. Using undisclosed governmental powers to secretly kill someone's
business because they won't enact useless and counterproductive policies is a
textbook example of systemic corruption.

>> How does age-related restrictions on alcohol relate to ID requirements for
flying? > I cannot purchase alcohol without presenting ID. I cannot fly
without either presenting ID or going through a screening process.

Yes, that much is a given. Thanks.

But one is because minors have shown to have (even more) problems with booze
and it's been proven to kill, etc. On the other hand showing ID is absolutely
worthless for finding weapons, in practice and in theory.

> Interestingly, both involve reasoning based on public safety, and in neither
> case is there a law passed by Congress which directly enacts the
> requirement.

But in the case of alcohol there is a law. We aren't a society of just-take-
the-hint and why-won't-you-read-between-the-lines, we're a society of laws.

Why are you so dead set on spinning this as business as usual? Who cares? It's
broken.

~~~
ubernostrum
I'm not "spinning" anything, simply posting some comments because there are a
few points a lot of people are overlooking in their knee-jerk rush.

One is that the court case hinged on the claim that the policy was secret. The
court's response was that the ID requirement was clearly posted for everyone
to see, and that when Gilmore asked about it, he was told how he could fly
without presenting ID. Legally, this is entirely correct.

Another is that secrets are not automatically the end of the world. Secret
rules aren't even illegal, much less unconstitutional; if that were the case,
many defense-related regulations, which do have the force of law, would have
to go out the window, and effective national defense would be essentially
impossible.

A third is a lurking suspicion that if we remove the bogeyman g-word
("government") from the picture, the stock responses on HN would be wildly
different.

If instead we had a cabal of airline executives who'd formed a cartel of
sufficient clout to quash all competition, and they agreed amongst themselves
to implement contracts requiring all passengers to present ID but refused to
make public the details of their agreement, I'm almost certain there would be
people here loudly defending it. It would be a noble triumph of free-market
capitalism. The passengers would obviously be negotiating away their "rights"
through a free and fair exchange protected by the holy sanctity of contract.
But of course, in that case it would just be a shadowy cabal of possibly
unknown people who aren't bound by any rules anywhere (we must never interfere
in the free market), rather than a cabal of publicly-identifiable people who
are accountable to the Constitution and to elections.

~~~
drivebyacct2
Knee jerk reaction? I've been fighting the Patriot Act for 7 years and you're
sitting here defending the practice of rushing legislation through the bodies
that are meant to serve as a vetting process for the laws that allow the
government to effectively (and illegally) suspend our Constitutional rights in
the name of terrorism, which is bad enough if we didn't already know it was
being abused.

~~~
tedunangst
I think you and wnight, in your haste to characterize ubernostrum as a secret
law lover and prove him wrong, did a poor job of identifying what he's
defending and what he's not defending.

~~~
drivebyacct2
He makes three distinct points and each are wholesale defenses of secrets, and
the second two combine to ignore the fact that it's a government entity making
the secrets and dismiss the lack of transparency as important, again,
especially given the laws we're discussing. I don't know how I have possibly
mischaracterized what's occurred here.

What am I missing here? They've boiled this down to completely trivial
examples that ignore the gross violations in Constitutional rights via gagged
court orders, NSLs, FISA warrants and courts, warrantless wiretapping, etc,
etc. They're debating the need for having IDs to buy alcohol as a defense of
secret government laws that are meant for protection.

This is the quint-essential "security vs liberty" and "governmental security
through obscurity". It's old, I've been debating it for years. Frankly, it's
intellectually weak.

~~~
ubernostrum
Well, no, it's not "intellectually weak".

You seem to be taking an absolutist position against secrecy. Personally, I'd
argue that such a position is completely untenable if you want a country that
survives its first conflict, but that's not really relevant.

What is relevant is the following:

* Moving the discussion away from "secrecy is always evil" and toward discussing specific instances.

* Acknowledging that a court ruling can be legally correct even if you personally would disagree with the results of that ruling.

* Learning to avoid reflex reactions and instead actually digging to see what happened and evaluating arguments.

------
eli
And this right here is why we still need big, expensive news organizations.
Sure, they don't need to be printed on dead trees, but I can't think of any
online publications with the resources to bring what will surely prove to be
an expensive. lengthy, and possibly fruitless lawsuit.

~~~
grandalf
Uh, the NY Times is the closest thing we have to an official government
newspaper, so I think you're severely mistaken if you think this counts as
holding government accountable.

The NY Times convinced a lot of people to support the Iraq war when it ran its
poorly fact-checked story fed to its reporter by propagandists funded by the
CIA. I remember how profoundly my view of the Iraq situation changed when I
read all of that in the paper I trusted at the time.

~~~
RexRollman
Did you really believe that the New York Times was infallible?

~~~
grandalf
It's not a question of fallibility. It's a question of how propaganda
functions in society. The Times has become a voice for the powerful interests
in the US.

Judith Miller's "mistakes" were hugely influential to me because I was
naive... similarly I think those who believe this lawsuit means anything are
similarly naive.

------
meric
If the government has secret interpretation of all its laws, how do they
expect citizens to conform with them? Let's say they arrest someone based on a
secret interpretation of its laws, does it mean the trial has to be secret
too, to avoid revealing this secret interpretation? Can the arrested person
hire a lawyer of his choosing, or are only lawyers with the appropriate level
of access (determined based on the government's own choosing) allowed to be
hired by the said arrested person? The secret trial is held, the judge deems
the person guilty (at this point we're not sure the judge was granted access
to the secret interpretation, though), the person goes to jail. Now, will the
person has access to the secret interpretation, so at least they now know for
what secret interpretation of the law they got into jail for? If not, then
what if the sentence was capital punishment?

~~~
zandor
You should read a bit about Nicholas Merrill who got a National Security
Letter and subsequently sued the FBI and the DoJ.

Wikipedia: <http://en.wikipedia.org/wiki/Nicholas_Merrill>

Wired: [http://www.wired.com/threatlevel/2010/08/nsl-gag-order-
lifte...](http://www.wired.com/threatlevel/2010/08/nsl-gag-order-lifted/)

Talk at CCC: <http://www.youtube.com/watch?v=C25EkdWLU1k>

~~~
georgieporgie
_Talk at CCC:<http://www.youtube.com/watch?v=C25EkdWLU1k*>

That was slow to get started, but became _very* interesting quickly. Thanks
for posting it.

------
jrockway
What depresses me most is how Obama is no better than Bush at this sort of
thing. It's not Democrats vs. Republicans: they're _all_ out to get us.

~~~
mcantelon
Yup. Both parties work for the same lobbyists.

~~~
dasil003
Who's lobbying to have secret laws? Smells more like government conspiracy by
non-elected officials.

------
mcantelon
Ask yourself why the US needs to have secret laws? Why the US pours so much
resources into domestic "counter-terrorism"? This ramping up of domestic
security has gone on intensely for a decade even though there is no credible
domestic threat. When the state spends so much resources effectively preparing
for war domestically, there just might be cause for concern.

~~~
shareme
Simple explanation:

1970s saw abuse of CIA/FBI power concerning spying, etc on US citizens.

Late 1970s laws passed curtailing that power

911 happens same agencies decide to broker a push to get those powers
back..thus we have the Patriot Act

~~~
mcantelon
That explains the Patriot Act and fun stuff like MAIN CORE, but there seems to
be a pattern beyond old-fashioned domestic surveillance: DHS, Northcom,
Infragard, secret prisons run by ICE, federal direction of local law
enforcement (i.e. Operation FALCON), domestic use of drones, the push for body
scanners/pre-crime detectors, the ability of the federal government to
assassinate US citizens, the "watch list" that feds can keep you on even if
you've been cleared or wrongdoing, etc.

The biggest federal building project since the Pentagon is the DHS HQ:

[http://www.cnn.com/2009/POLITICS/09/09/homeland.security.hea...](http://www.cnn.com/2009/POLITICS/09/09/homeland.security.headquarters/index.html)

~~~
gyardley
What interests me most is the change in Obama's domestic security stance after
assuming the presidency. Remember his promises to close Guantanamo Bay? Now
Obama seems more authoritarian than President Bush was.

To me, this radical change in stance suggests that there _is_ in fact a
credible domestic threat against the United States - that Obama, on assuming
the presidency, learned some things that made a deep-enough impression on him
to transform his stance on national security. I don't like that conclusion,
but to me, that's the simplest interpretation of his behavior. (I'd love to
hear other, less frightening interpretations. As it is, I try not to think
about this stuff too much.)

If so, perhaps many of the actions of this and the past administration are
justifiable as lesser evils - _perhaps_. However, the executive branch
shouldn't get to make this determination alone. It's not necessarily the
administration's decisions that are the problem here, but the complete veil of
secrecy around them that's keeping us from having an informed debate.

~~~
mcantelon
>I don't like that conclusion, but to me, that's the simplest interpretation
of his behavior. (I'd love to hear other, less frightening interpretations. As
it is, I try not to think about this stuff too much.)

Another possibility is that the US powers-that-be have looked at America's
long term economic prospects and have decided that America must change to
survive. China and India are becoming dominant economic forces and if the US
wants to compete it may want to impose new labor standards on Americans and
strip them of benefits. This would, of course, create the possibility of a
popular uprising. In preparation for this eventuality, they may be using
counter-terrorism as a cover for counter-insurgence preparations.

~~~
Roboprog
That's an interesting argument. whether or not one agrees with the premising,
it's interesting to consider that those at the top might.

God forbid we the people (of the US) put a stop to untaxed imports and the
like and stop _feeding_ the beasts oversees. Perhaps too late for that to have
much impact now, anyway. Somehow we managed to compete with the Soviet's
without being pressed into serfdom, but I guess it doesn't matter what _I_
believe.

------
acabal
If I'm reading this right, the NY Times say that if parts are classified, the
interpretation should be released but the classified parts blacked out. What's
to stop the government from just blacking out every word, then "releasing"
that? Is there some kind of standard or expectation that can prevent the
government from doing that?

~~~
eli
The Freedom of Information Act (FOIA) is far from perfect, but once a claim is
denied and a lawsuit is filed, the burden is on the government to prove which
parts (if any) of the document are protected from disclosure. They rejected
the initial FOIA request on the grounds that the document is properly
classified and would jeopardize national security, but now they will have to
prove that to a judge.

In other words, if the lawsuit proceeds all the way to the bitter end, it's up
to the judge what parts are blacked out, not the DoJ.

RCFP has a nice overview of the process, if you're interested in the details:
<http://www.rcfp.org/fogg/index.php?i=intro>

------
Andrew_Quentin
I am confused. Is it not the judges who interpret the act, the law, etc, not
the fed or the government.

~~~
jarrett
Yes, insofar as the law is brought before the court. But everyone--private
citizens and governments alike--are constantly "interpreting" the law, in that
they're operating on certain assumptions about what the law means. For
example, when you file your taxes, you are, as strange as it sounds,
interpreting the tax code.

In this case, there is more than one possible way to interpret the PATRIOT
Act. The government has to decide what it thinks the law means, and use that
interpretation to guide its actions.

------
InclinedPlane
Most transparent administration in history.

------
electromagnetic
> What sort of democracy are we living in when the government can refuse to
> even say how it's interpreting its own law? That's not democracy at all.

I really don't get his point here. Democracy has nothing to do with the legal
structure of elected governments, nor does it have anything to do with the
clarity of the legal system.

Democracy is to do with every "citizen" having a fair and equal right to vote.
Of which freedom of political expression, freedom of speech and freedom of the
presses are considered essential tenets.

The US is currently suffering Majority Rule in that the majority is shit
scared of anything and everything, especially fellow human beings with head
wear out of their traditional social or religious norms. This means the
majority in the US is fully willing to sign away rights and freedoms for the
mere assumption that they're "protected" by a piece of paper stored in the
library of congress.

I'd feel safer if we armed the clowns with shotguns, you know as a surprise
attack thing.

~~~
hnhg
My interpretation of democracy is that it needs a legal system that works, and
I believe that means it has to be fair and transparent. If the fabric of a
legal system is corrupt, what's the point of politics?

------
aes
What parts of Patriot Act are secret?

~~~
sukuriant
The interpretations of certain parts of the law are secret.

------
nkassis
reminds me of this onion video: <http://www.youtube.com/watch?v=HWfKdKWJEkM>

------
suivix
Just another day of Bush in office... oh wait.

~~~
Shivetya
Sarcasm I know, but far too many people fall for promises made on a campaign
trail. Worse far too many believe their side will always do what is right.

Yet once in power there are far too many government agencies and persons who
have a vested interest in keeping the status quo. Some will simply overwhelm
any new administration so as to keep their power, others will use fear, some
will stall, and finally others will just ignore and hope to ride out the four
or eight years.

