
FISA Court Rejects Catch-22 Secrecy Argument in FOIA Case - Titanous
https://www.eff.org/deeplinks/2013/06/public-first-secret-court-grants-eff-motion-consenting-disclosure
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adventured
The EFF has been carrying an immense amount of weight throughout all of this.
I'm not sure I can name another organization that has done so much. Their
budget desperately needs to be expanded dramatically.

~~~
tghw
We can help them do exactly that:

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

~~~
jevinskie
I donated money and bought some stickers on Friday. They can definitely use
our help! The EFF also helps us in our fight for jailbreaking rights.

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acqq
The relevant quote from the book written by Joseph Heller:

 _" 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."_

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toufka
It's great that Snowden is a pivotal character in that story too!

~~~
acqq
However Snowden of the book unfortunatelly for him contributes the content of
his dismembered guts:

[http://en.wikipedia.org/wiki/Yossarian#Snowden](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."_

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zmmmmm
This is good to hear, but you have to really worry that there are people in
the government who argued against it.

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.

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joshfraser
"Secret court" and "secret law"

What an absurd concept and a sad place for the US to be.

~~~
wycats
There is no secret law. FISA, the law which authorizes surveillance, is a
public law approved by Congress.

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.

~~~
btilly
Actually the USA does have secret laws.

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/](http://papersplease.org/gilmore/) for
verification.

~~~
talmand
Not that I agree with the concept of the law in question, a private airline
does have the right to require that you present any ID of their choosing to
fly on their planes. They have the right to refuse you if you choose to not
follow their rules.

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.

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btilly
_Not that I agree with the concept of the law in question, a private airline
does have the right to require that you present any ID of their choosing to
fly on their planes. They have the right to refuse you if you choose to not
follow their rules._

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.

~~~
talmand
I totally agree, that's why I believe the requirement was shifted from the
airlines' responsibility to the TSA directly. Now you are not being asked for
ID to travel, you are being asked ID to pass a security gate.

~~~
dragonwriter
> I totally agree, that's why I believe the requirement was shifted from the
> airlines' responsibility to the TSA directly.

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.)

~~~
talmand
I agree with this as well. Such as shift can have more than one benefit.

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rayiner
"In fact, it took EFF longer to figure out how to physically file a motion
with the FISC than it did for the FISC to dispatch with the DOJ's arguments."

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csense
Ignorance of the law is no excuse.

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](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.

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mtgx
There can't be a democracy with "secret laws". I hope people will see that
through whatever excuses the administration will try to launch next.

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mpyne
As well the FISA court should reject that argument.

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fnordfnordfnord
It's a surprise because it's one of the few times the FISC has said no to the
gov't.

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mpyne
Well, except for that one time when the court said a part of the law is
unconstitutional and the government refused to mention the specifics of that
ruling. ;)

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uptown
So the fight is for public disclosure of a decision of which the outcome is
already known?

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coreyja
I believe the decision was know as in we know that they ruled some parts of
the law were unconstitutional. But if I understand correctly, it wasn't
released what parts of the law were unconstitutional or why they were
unconstitutional. This was for public disclosure of that information.

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vaadu
The ABA ought to threaten disbarment of any government lawyer that argues
something so unamerican.

