
A court case so secret, US Govt says it can't go on - BrandiATMuhkuh
http://m.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11424037
======
ccleve
Let's place the blame where it lies -- with this idiot judge. If a plaintiff
has a legitimate case, and the goverment has a legitimate reason for secrecy,
then it's the job of the judge to navigate these waters so justice is done.
The judge has a ton of tools at his disposal. He can exclude certain evidence.
He can review the evidence himself, which is probably what he would be doing
in a bench trial anyway. He can give an indication of how he is likely to
rule, knowing what he knows, and push the parties to settle. He can tell
litigants that their chances would be better if they used lawyers who were
cleared to have classified information. There are hundreds of things he can
do, and he is required to do them, because _it 's his damn job._

We give way too much deference to federal judges.

~~~
osirisr
It's the judges fault? Yeah, its pretty hard to 'support the common good' when
you have a 'gun' put to your head.

~~~
pavpanchekha
I think this is a little too much conspiracy-mongering. Three federal judges
have been killed in office, none of them seemingly assassinated by the US.
government. Federal judges also have good job protection—"federal judges have
perhaps the best job security available in the United States", and only 15
have ever been impeached in all history (it would take a session of Congress).
Judges are also socially well-respected, so it'd be hard to find social
attacks on a judge.

What exactly were you going for with your comment? What sort of illicit
pressure were you suggesting?

~~~
madaxe_again
I can't speak for the U.S., but I do know of (as it's someone I know - not
because it's been in the press, apart from the character assassination bit)
one case in the UK where, behind closed doors, a senior QC opposed the
machinations of a secret court... And then totally unrelatedly the press _and
prime minister_ come forwards to slander him, and his wife is found at home
brain dead, apparently having tried to commit suicide.

------
Animats
When the Government invokes the state secrets privilege in a lawsuit to
conceal evidence, it should _lose_ the case, not win it.

It seems to be an open secret that UANI is a front for the CIA and/or Mossad.
Until now, that info only appeared in fringe blogs. Now it's in the mainstream
press. So the coverup effort may have backfired.

~~~
discardorama
> it should lose the case, not win it.

Problem is... the government is _not even a party_ to the case! They can't win
or lose; they're like the guy objecting at someone else's wedding.

~~~
scott00
That is a bit of a wrinkle, but it's easy enough to extend the basic principle
to that type of situation. If the government objects to person A suing person
B for $10 million, it should have to pay person A the ten mil to make the case
go away.

~~~
Tomte
And if A sues B not for money, but for some kind of action? Or injunctive
relief?

~~~
nknighthb
The government can either take the action itself if it makes sense, or
compensate B for its costs.

~~~
Tomte
So the government can somehow hack into the NYTimes editing process and put a
retraction of some earlier claim into the newspaper, all without the NYTimes
staff cooperating?

Similarly, if A is constantly harassing B, B should just shut up and take the
money the government pays him in compensation, along with the harassment that
isn't being stopped?

Are you sure that is the outcome you are advocating for?

~~~
nknighthb
> _So the government can somehow hack into the NYTimes editing process and put
> a retraction of some earlier claim into the newspaper, all without the
> NYTimes staff cooperating?_

Can you come up with a concrete example of how such a court order might come
about in a case that the government is intervening in in this manner?

> _Similarly, if A is constantly harassing B, B should just shut up and take
> the money the government pays him in compensation, along with the harassment
> that isn 't being stopped?_

See above.

> _Are you sure that is the outcome you are advocating for?_

It's difficult to know, since these seem to have no relationship to any
hypothetical case I can come up with.

~~~
Tomte
You're moving goal posts.

My example is: A sues the NYT, demanding that they rescind something.

Your solution: The government steps in and takes the action itself.

 _You_ want the government to get involved. I don't. I want A and the NYT to
fight it out in court.

~~~
nknighthb
No, I don't want the government to get involved. I hold the (probably far more
radical position than you) that government is not entitled to secrets at all,
and that all government employees should be live-streaming their activities to
the public Internet at all times while on duty.

I was presenting an alternative on the assumption the government would anyway.

~~~
Tomte
We're not talking about secrets and government employees!

You have expressed your desire to not have any judgments except monetary
compensations.

And I'm pointing out that harassment victims would rather live in peace than
get some money in exchange for their state-sanctioned(!) victimhood.

~~~
nknighthb
> _We 're not talking about secrets and government employees!_

Actually, that is the core premise of the conversation I am having.

You probably have a reasonable point, but I'm disinclined to discuss it if
we're not actually having the same conversation. All the more so since you
have made a false accusation about my desires.

------
scott00
I don't know why everybody's assuming that the reason the government
interfered is because the United Against organization is a front for a US
intelligence agency. Here's an alternative theory with just as much proof (ie,
none): maybe the CIA impersonated this shipping company to sell some sabatoged
centrifuges or whatnot to Iran. Maybe United Against really is what they say
they are, and since they're ex-spooks, not current spooks, they dug up the
cover story but not the real story. Explains why the shipping company is
pissed about being blamed, why United felt the need to publicly shame them,
and why the CIA might not want the world to know about it.

The real point is... we have no idea why the government cares. Don't assume
it's the most obvious reason.

~~~
acqq
If the CIA impersonated the shipping company, Iranians now already have that
info, that the real company claims that it did no wrong. The government
intervention is then not for Iranians, but to prevent the disclosure of the
things the government did illegally.

------
jaboutboul
Be afraid. Be very afraid. This is such a frightening precedent. Sounds more
like the USSR than the US. Sad to see what is becoming of the great US.

~~~
rosser
_...precedent._

"You keep saying that word. I do not think it means what you think it means."

As terrible as I, too, think this decision was, it was a decision by a _trial_
court judge. "Precedents" don't attach to trial court decisions, only to
appellate court decisions.

If Restis appeals, and the dismissal is upheld by the appellate courts, _then_
there will be a precedent, with everything that implies. Similarly, if he
appeals and the dismissal is reversed, a much more favorable (to your and my
tastes, anyway) precedent will attach, which can be used to argue against any
other attempts to toss suits to which the government isn't even a party on the
basis of the State Secrets Privilege.

For the moment, however, this is an "isolated" incident, and can't be used
precedentially in any similar cases.

EDIT: Yes, follow-ups, there are other definitions of the word "precedent". In
the discussion of a _legal_ decision, however, the _legal_ definition takes
... well, precedence.

~~~
Roscius
...and you've gotten the legal definition wrong.

That precedent only applies to appellate court decisions is not true. There's
persuasive precedent applies amongst courts of the same level.

It the facts and law are the same, a similar lower court decision could indeed
be introduced in a similar case. The precedent isn't necessarily binding, but
courts will generally defer unless there is a pervasive reason not too.

This is seen when the Supreme Court defers to its previous decisions (stare
decisis)

~~~
rosser
Do you mean " _persuasive_ precedent"?

If so, you're right that it's not binding. Higher courts can, and do, defer to
lower courts — where the higher court concurs with the lower court's legal
reasoning. But that requires the case to have appeared before an _appellate_
court.

The reason for this is simple: trial courts consider questions of _fact_ ,
while appellate courts consider questions of _law_.

Similarly, so-called "horizontal precedent" applies between peer _appellate_
courts — and, again, isn't binding.

To my understanding, the only way this becomes more than informally
precedential is if it's legitimately a "case of first impression" — and that
would apply IFF this case is legitimately the first place this question of law
was asked, and only until it's heard and ruled upon (or not taken up) by an
appellate court.

~~~
Roscius
Yes corrected to read "persuasive" (phone auto-corrected).

Non-binding precedent is still precedent. And as you've said, in the absence
of an higher court opinion to the contrary, lower court decisions can be taken
as precedent and can be considered at the lower court (trial court level).

Lower courts consider new questions of law, otherwise new questions would
never be able to be addressed (with some state level advisory opinions aside)

------
rcthompson
"United Against was founded in 2008 by a former CIA director and a group of
retired diplomats to advocate against the nuclear Iran. Its board includes
former directors of foreign intelligence services including the U.K.'s MI-6,
Germany's BND - and Israel's Mossad."

So basically the defendant, "United Against Nuclear Iran", is an extended
branch of several governments' spy agencies and enjoys all the protections
that result from that status.

~~~
nowarninglabel
Not quite retired, WHOIS shows Henley MacIntyre as their contact, who also
appears in their 2008 990:
[https://www.unitedagainstnucleariran.com/sites/default/files...](https://www.unitedagainstnucleariran.com/sites/default/files/ACANI_2008_IRS_990.pdf)

Seemed she worked for them to get everything set up (which makes sense as
Wallace seems to describe her as his right-hand woman
[https://books.google.com/books?id=v5owKbDSg7kC&pg=PA125&lpg=...](https://books.google.com/books?id=v5owKbDSg7kC&pg=PA125&lpg=PA125&dq=%22henley+macintyre%22&source=bl&ots=DW0npF7_0x&sig=iPl2789kvGdUQM-M1XdblI07Tz4&hl=en&sa=X&ei=jnQYVcjwFdGsogTI5YCIBQ&ved=0CC0Q6AEwAw)
), and is now working for the State Department but has a long history of roles
high up in the last administration.

[https://www.linkedin.com/pub/henley-
macintyre/3/b95/a69](https://www.linkedin.com/pub/henley-macintyre/3/b95/a69)
[http://www.williscommunications.com/who-we-are/henley-
old/](http://www.williscommunications.com/who-we-are/henley-old/)

------
littletimmy
What the flying fuck. Basically, party A sues party B, and party B has the
back of the government, so the court tells party A to go away. Reasons
undisclosed.

Wow. Talk about Kafkaesque justice.

~~~
baq
isn't this worse than that? party B also doesn't get to know what's going on
and also doesn't get a chance to win the case.

~~~
jakobdabo
Of course Party B knows what's going on, they are high rank spies (and there
is no such thing as "former" spy).

------
gnoway
Looks like this has been going on for a while[0] and that Restis tried to
quash the whole thing with, effectively, a bribe[1].

Shortly after filing this complaint, Restis was arrested for money laundering
and embezzlement[2]. It's not clear whether those are legitimate allegations
or themselves evidence of government gone wrong.

If this were a US citizen and it was clearly a case of the government wanting
to avoid some embarrassment, it would be worth getting angry about. But in
this case, where it's related to Iran and would have bearing on ongoing
dealmaking, etc. it seems like asserting state privilege might actually be a
good thing.

[0]
[http://fas.org/sgp/jud/statesec/restis/](http://fas.org/sgp/jud/statesec/restis/)

[1] [http://blogs.reuters.com/alison-frankel/2014/02/18/the-
peril...](http://blogs.reuters.com/alison-frankel/2014/02/18/the-perils-of-
suing-for-libel-greek-magnate-and-iran-edition/)

[2]
[http://shippingwatch.com/carriers/article5762315.ece](http://shippingwatch.com/carriers/article5762315.ece)

~~~
themartorana
Although that's a really easy way to discredit someone...

Not that I am positing that's what happened... But the last thing I'm willing
to do in a case of government front agency vs anyone, in a case where the
government had taken extraordinary measures to protect an agency they deny any
involvement with... Is assume it's not a move to further discredit their
accuser.

------
sliverstorm
Maybe the USA is now worse than Communist Russia. Maybe so.

But it sure would be nice to for once read a comment section that focus on
other interesting aspects, instead of proclaiming for the millionth time that
the USA is now a totalitarian dictatorship dystopia, how the rule of law is
gone, and how the little guy has been forgotten.

I'm not saying those are unimportant questions, but if I had a nickel for
every time one of those same comments was repeated on these types of articles,
I would own several islands in the Bahamas.

~~~
guard-of-terra
When you're held at gunpoint, the inner workings of AK-47 don't interest you
much. Regardless of how well you understand them, won't save you from bullets.

~~~
sliverstorm
Yes, but I might wonder why am _I_ being held at gunpoint? How might I _avoid_
being held at gunpoint in the future? Can I somehow talk him down or coerce or
placate him?

Instead of simply muttering bitter things about how the world has gone to
sh*t.

~~~
guard-of-terra
It's you because everyone is held at gunpoint. I'm afraid you can't avoid
this, but you can evade being at gunpoint by keeping low profile, downshifting
and stuff. This of course is only temporary Unfortunately, you can't fix this
situation unless democracy work again, and it won't until we figure out how to
do it in the world that became a thousand times more complex.

------
ZanyProgrammer
"That so-called privilege doesn't come from the Constitution or from statute."

This is highly misleading, as it ignores the role that court cases play as
precedent in common law jurisdictions. United States v Reynolds, for starters.

~~~
voxic11
Its not misleading at all, there are 5 sources of US law constitutional law,
statutory law, treaties, administrative regulations, and the common law. State
secrets privilege comes from common law not constitutional law, or statutory
law.

~~~
ubernostrum
It _is_ misleading; it's meant to suggest that courts are, extralegally, doing
the will of the government.

In actuality, common-law systems draw from additional sources beyond a
national/state constitution and statutes. And New Zealand (home of the NZ
Herald) is a common-law jurisdiction, so the concept should not be completely
foreign.

------
coldcode
I wish we could sue the judge and request the Supreme Court identify if the
behavior is allowed by the Constitution. But of course the Federal Government
makes it impossible to get standing when the Constitution is clearly violated.
It's like the People no longer matter.

~~~
rayiner
The parties can appeal.

~~~
MichaelBurge
I have a lot of faith in our judicial system. I think they overall do a good
job evaluating evidence as objectively as they can.

Sometimes a lower court makes a mistake, since they have a very broad focus
handling the trial as a whole. If an appeal is filed to a higher court,
they'll have the much narrower focus of determining proper judicial
procedures.

I believe a higher court will take this seriously if appealed, and will issue
new procedures for handling classified information if this is a serious
concern.

~~~
spacemanmatt
I have no faith the judicial system, as a whole, is any less than self-
serving. We have a serious problem with overzealous prosecutors enforcing a
racist drug war, and judges pretend like their hands are tied every step of
the way.

I suppose that's a little bit true. They might lose their jobs if they
actually spoke for justice.

~~~
rayiner
Federal judges have life tenure. The drug war continues to be prosecuted
because people support it. The only legalization supported by the public is
possession of marijuana, which accounts for a tiny fraction of federal drug
prosecutions. Support for keeping other drugs illegal is still 75-90%, and
those drugs are the ones involved in almost all drug prosecutions.
[http://m.huffpost.com/us/entry/5162357](http://m.huffpost.com/us/entry/5162357)

~~~
spacemanmatt
Popular support doesn't excuse the judges who basically look the other way
when prosecutors go entirely overboard, nor does it excuse prosecutors who
cross the line.

Prosecutors, and I'm pretty sure judges as well (I am not a lawyer) are
officers of the court. They should be held more accountable to their
obligations in that capacity.

~~~
rayiner
What's your contention exactly? That because of prosecutorial overreach drug
dealers are convicted of harsher crimes than are justified by the facts?

------
joshuaheard
I'm fine with the government claiming a state secrets privilege and the judge
upholding it based on an in camera review. However, I see no reason for the
case not to go forward with the available evidence publicly presented. This is
a reasonable check on the government use of the privilege. If the government
wants to hold back evidence, then the case gets decided on the available
evidence presented to the fact-finder.

------
thezilch
Saw this earlier via Glenn Greenwald:
[https://firstlook.org/theintercept/2015/03/26/new-low-
obama-...](https://firstlook.org/theintercept/2015/03/26/new-low-obama-doj-
federal-courts-abusing-state-secrets-privilege/)

------
Reddytowns2
If the US is ever to get back its reputation, it will have to stop these kinds
of things from being reported on.

~~~
jqm
The best way to do that would be to stop engaging in these kind of practices.
But they'll probably try what you said first.

------
markdown
This is pretty much the plot of the two most recent episodes of The BlackList.

[http://www.nbc.com/the-blacklist](http://www.nbc.com/the-blacklist)

------
mattlutze
I see no reason why DoJ wouldn't, in a case like this, employ some sort of
ombudsman or public defender with clearance to argue on behalf of the
plaintiff. In some way the two parties should be represented in the decision.

------
nickkline
{sigh}...somebody send this to Dan Carlin...maybe we can two Common Sense
episodes in one week...that's the only silver lining I can think of...

------
retrogradeorbit
[https://www.youtube.com/watch?v=IlKEybkVl0M](https://www.youtube.com/watch?v=IlKEybkVl0M)

------
comrade1
Our intelligence services are at war with Iran. Nearly every budget point,
every effort, must be justified in terms of our struggle against the Iranians.

This is not that different than when we were in a cold war against the Soviet
Union. The support structures of our government change slower than world
politics and so our efforts against Iran can seem like a farce with us putting
the same effort into their defeat.

We lost our chance to bring the Russians in as our allies and we will probably
lose a similar chance with the Iranians with the nuclear negotiations
happening in Geneva/Lausanne/Montreux right now. The bureaucracy moves too
slow.

~~~
IkmoIkmo
> Nearly every budget point, every effort, must be justified in terms of our
> struggle against the Iranians.

Look you have to supposedly private, non-government parties. They go to court
for some reason. But one of the two parties is actually backed by the
government, and the court is influenced by that backing to such an extent that
it influences the case.

Not only is this a blatant form of government corruption, with private parties
receiving government backing, but it also damages the separation of powers.

If you think it's completely justified to throw out the window many written
and unwritten laws, elements of the constitution and basic structures of
governance, because of negotiations with Iran, then I think you're willing to
give up too many freedoms and rights. The real definition of terrorism to me
is not when terror attacks kill as many people in a given year as falling
fridges or indeed babies as is indeed the case, but when we're so scared of
another cold-waresque threat that we're diminishing our own societies
preemptively.

That's what this is about.

------
throwawaycontro
I know this is going to be a controversial opinion, but to me it seems that
this is perfectly reasonable. As great as it would be for the government to be
completely transparent, that is simply not practical. Transparency would hurt
the US's security, so this is simply the best option.

~~~
IkmoIkmo
I hope it's not lost on you that history is riddled with corrupt regimes who
employ that kind of rhetoric.

I hope it's also not lost on you that US history has a fair share of incidents
where lack of transparency and honesty led to some of the worst policy one
could have imagined. You may think of say, the rise of Iran in an area where
its counterweight in Iraq was virtually destroyed, leaving a power vacuum and
enough weapons and a lack of proper governance that allowed sectarian violence
and the likes of Isis to arise, after a brutal decade long war against people
who rightly so viewed the US as invaders into their country. A war which was
justified and explained on the basis of evidence that was not public and that
a decade later looked unsubstantial and partially fabricated.

But who cares right? We need to elect people who lie to us and keep secrets
from us, for our own good. And if we have to let our government affect the
courts, the separation of powers, and run policy through supposedly non-
governmental government-backed organisations, why the hell not. Not like an
independent court or a separation of powers has any value, right?

~~~
mreiland
> I hope it's not lost on you that history is riddled with corrupt regimes who
> employ that kind of rhetoric.

All governments are corrupt, are you implying governments don't have a need
for secrecy?

I don't really have an opinion on this subject, but your response appears to
ignore the other side of the issue.

