State secrets have always been problematic. Take the very first case: https://en.wikipedia.org/wiki/United_States_v._Reynolds#Subs.... As was later discovered, the biggest secret was how much the government didn't want to be embarrassed.
But, common law is common law. If the privilege is invoked, courts get bound by precedent. Regardless of what the personal opinions of the judge may be.
The way that state secrets used to be handled was simple. The government chose on a case by case basis whether or not they were willing to not present their evidence (potentially losing the case because of it), or whether they wished to present their facts to the judge in camera (meaning in private, in chambers, relying on the judge to maintain confidentiality).
There is no particularly good reason that we could not have maintained that system. But conversely, now that the States Secrets privilege exists, there is no reason why the government shouldn't be aggressive about asserting it.
Because now you are an Empire
The issue here isn't whether the government wants to use secret evidence to prosecute someone else, but whether a plaintiff, to make its case, can force the government to disclose state secrets. That's an entirely different situation, one that historically was extremely rare or even non-existent when the Federal administrative state was miniscule and there weren't broad rights (statutory or court-made) that created rights of action against the government or which waived sovereign immunity (i.e. you couldn't sue the government, period).
Wikipedia's lawsuit begs the question of the injury. Unlawful surveillance by itself wasn't an injury that courts would historically have taken cognizance of, modulo whatever rare exceptions there might have been. Courts wouldn't have considered it their role to squash any and all illegal government behavior; a situation like Wikipedia's claim would have best been addressed through the ballot box.
Remember, courts required and at least nominally still require concrete injuries. A claim without an injury is no claim at all, and invasion of privacy on its own was not a concrete injury. That's a recent judicial creation. The remedy for an illegal search was a) a claim for trespass if trespassing occurred, and b) return of illegally seized evidence, which prevented use at trial only as a consequence of the government no longer being in possession and unable to force the defendant to submit it themself (i.e. self incrimination). If neither situation applied, then an illegal search was of no matter to the court; mere illegality wasn't an injury. Application of an exclusionary rule disconnected from this simple, logical application of traditional rights didn't come about until the past century or two. And the reframing and reconceptualization of traditional constitutional rights as a matter of privacy (as opposed to dominion over property and conscience) and then recognizing an invasion of privacy per se as a concrete injury is an even more recent innovation. Not only recent, but incomplete and perhaps a bit tenuous--the logic of Roe v. Wade is fundamentally grounded in the logic of privacy, which is why Roe v. Wade rests on somewhat shaky legal ground.
 Traditional rules of evidence would have required submission of an original document to establish a fact evidenced in the document. A government witness couldn't simply recite it from memory; that would be hearsay. A government created copy would at best have had heavily discounted credibility given the suspect provenance, and I bet often would have been inadmissible--not because of any fruit-of-the-poison-tree logic, but because it's likewise effectively hearsay.
As for your legal theories, they are not exactly accurate. You claim that the government could not use information because they did not have it. But, as in the 1886 case of Boyd v. United States, the government had and tried to use information. It was only on appeal that it was ruled that information that they had from violations of the Constitution could not be used, and therefore decisions depending on that information had to be reversed.
Still the case law did tend strongly to concerns about a practical injury of trespass or a lawsuit.
As for your passing comment about Roe v. Wade, that is disingenuous to the point of outright dishonesty. The reason why that decision is currently on shaky legal ground is that decades of concerted effort have resulted in the appointment of judges chosen for their politics over the quality of their legal reasoning, specifically to overturn that decision.
Whether you agree or disagree with the decision and its reasoning, there is no question that it is an obvious and great imposition on a pregnant woman to force her to continue her pregnancy. The consequences include restrictions on her actions, buying new clothing, frequently a period of being unable to work, intense hormones, common pain and injury during childbirth, with a non-negligible chance of death at the end of it. (Currently that has a 0.017% chance.) Claiming that there is no injury here is ridiculous.
Reynolds was only ever able to sue because the Federal Tort Claims Act, passed only a few years earlier in 1946, made it possible to sue where before a suit would have been impossible. As I said, it's difficult to make broad claims about the historical scope of state secrets privileges viz-z-viz constitutional rights (the issue in the Wikipedia case) when for most of American history, not to mention English history, there rarely if ever would have been occasion for the state to need to make use of a concept like state secrets. Reynolds is really about the scope of waiver of sovereign immunity. Importantly, there were never any constitutional rights implicated, at least not those of the plaintiff, as they didn't have a constitutional right to sue. I hesitate to say that the government had any constitutional rights as IMO it's better to understand the government's claim of privilege in terms of the power of the court viz-a-viz the government, and the courts deference to sovereign immunity.
> But, as in the 1886 case of Boyd v. United States, the government had and tried to use information. It was only on appeal that it was ruled that information that they had from violations of the Constitution could not be used, and therefore decisions depending on that information had to be reversed.
Body v. United States says "It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove." As I said, that's a matter of self-incrimination, which while not as ancient as rules regarding property was a well established and core constitutional principle in English law. Interpretation and application of the right against self-incrimination has always been tricky (see, e.g., passwords today), so it's not at all surprising a trial court would rule one way and an appellate court another. Similarly, the dividing line between criminal cases (where a right against self-incrimination applies) and civil cases (where it does not) has likewise never been simple and clear. Furthermore, I said, "Application of an exclusionary rule disconnected from this simple, logical application of traditional rights didn't come about until the past century or two." IOW, the evolution of modern exclusionary rules was an incremental process, both in case law as well as conceptually. There's no limit to how far back one can claim to extend the logic of modern exclusionary rules. But past "a century or two" (and I'm being charitable) it's extremely difficult to make sense of case law using modern legal concepts.
> As for your passing comment about Roe v. Wade, that is disingenuous to the point of outright dishonesty. The reason why that decision is currently on shaky legal ground is that decades of concerted effort have resulted in the appointment of judges chosen for their politics over the quality of their legal reasoning, specifically to overturn that decision.
Are we talking law or politics here? If we stick to law, the legal argument against Roe v. Wade is fundamentally about the existence and nature of constitutional privacy rights. (Or at least it was for most of the past 50 years. See the conservative arguments against Lawrence v. Texas. Now younger conservative jurists have grown up having internalized the concept and many of the implications of privacy rights, which is why they've pivoted to emphasizing fetal rights.)
You assume too much if you a) think I fundamentally disagree with Roe v. Wade or b) believe that I'm an originalist who would not accept the legitimacy of a reframing of constitutional law around the concept of privacy rights. However, it's very difficult to understand how we got where we are today, and where we might go tomorrow, if we insist (like many conservatives do) that there's always and only one correct way to interpret and apply constitutional law, textual or otherwise.
Remember the kangaroo court that is FISA? Bored old men rubber stamping whatever is put in front of them, and even then the services didn't bother with some of the worst things. It took Snowden to expose this - now think again about that podcast of staff lawyers.
What about incidents like https://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-n...?
No we do not. State Secrets is an affront to concept of "government of the people, for the people"
One can not have an informed public, that is able to choose how the government should function, who to send to represent them, and everything else with a functional self governing population if there is exists secrets from said population
Governments should never be allowed to perform actions in our name while never allowing US to know of those actions. The only thing on that path is corruption and Tyranny
Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
The courts must have the authority to review these cases, anything else is completely incoherent.
> Not perfect, but allowing any member of the public to expose classified secrets via lawsuits would certainly be an attack vector for foreign adversaries.
If foreign adversaries are trying to overturn illegal domestic dragnet surveillance, maybe I should be paying my taxes to them.
A lot of the foundational concepts in liberal democracies are justified on the assumption that citizens are engaged and conscientious electors (that is, intelligent and able to make up their own minds), and as a result unconstitutional legislation is a form of political suicide, or a real manifestation of democratic will which lead to constitutional amendments. It operates on the idea that doing x in that particular way "is not who we are". Because you can see that they are unconstitutional laws, means that you can vote and engage politically to stop or pull back that law.
Modern political realities have tested those assumptions. A two party deadlocked system, decline of civic education, and unchecked money in elections, are amongst many culprits.
Personally, I think the inability for America to move beyond a 2 party system hampers it far more.
But... that doesn't conflict with the ideas above.
>> I believe [Thomas Jefferson] felt the primary countermeasure to this problem was a limited federal government. In his time the federal government was dramatically smaller and the average person had nearly zero interaction with it during their lives.
Those descriptions, "limited" and "strong", are independent of each other. The government of Ming China was a superpower. It was strong and centralized in the Hamiltonian sense. It was also quite sharply limited in the Jeffersonian sense. How limited? When the dynasty fell, the conquering Qing had to deal with a Ming loyalist who just happened to control all of China's oceangoing shipping via his own private navy.
They eventually defeated him by evacuating the coast. The entire coast. The government had the power to do completely absurd things. But they didn't, as a rule, involve themselves with much.
The reason why US only has 2 parties is because its electoral system is first-past-the-post, and all legislative districts are single-member. The moment it switches to something like, say, MMP, I'm certain that the existing parties will disintegrate across factional lines.
My take on it is that our voting system is what leads to two parties. Something that allows people to vote their conscience rather than having to strategically vote for the lesser of two evils, like ranked-choice voting or approval voting, could allow more parties to win representation at the national level.
Crazy things are happening in Texas the local government is politicizing federal elections and oppressing minority vote by making voting more difficult in areas where minorities live. I wonder are Texans going to vote with their feet?
I suspect Texas government does not care if democrats vote with their feet and move out of the state, that just means more power to those already in power.
Further what happens in Texas does not stay in Texas it affects vote-counting of federal elections as well. So people moving out of there does not really seem like a viable solution.
Texas isn't the state with the tyranny.
Suppressing the vote of certain groups such as minorities making it more difficult for them to vote, is a move away from democracy. So where are you going if you move towards less democracy? You move towards the opposite of democracy - which is, tyranny.
Do you even know?
Because I've heard this racist story before.
This is not an option for the people who would be most affected by policies where they would benefit by moving, the poor.
Men who moved to another county or state, by age group: Overall and by selected earnings quartile, various periods 1994–2016 (annual average percentages)
I think population differences and pretty much all land having been settled/allocated now compared to the Dust Bowl period make them incomparable.
It is by no means a perfect system, but I think a release value like it would be helpful in diverse times like these.
In order for a "check" to be valid, the "check" has to have full knowledge of the thing they are checking..
Further the "people" are not the check to the Legislature, the Court is. That is how our system it setup
The people was to only be a "check" for their own congressman in the house, and since not even the full house is able to get classified briefing just a select few, and they can not tell anyone about what happens there, it is literally impossible for the "people" to be considered the check in that system
So there is no check in theory or in practice
The legislative branch is at fault here for punting on their governing responsibilities. But it is true that via their oversight committees, they have constrained the actions of the executive, via new laws, based on classified intel.
Foreign adversaries have no interest in domestic surveillance. There are many other things they'd like to get their hands on via discovery, though.
This is possible via emigration. The highest profile adversaries of the US don't have a better track record when it comes to domestic surveillance however.
If you want to save the environment, do not study environmental science. Study politics, and become a politician, at the local, state, or federal level. Gain some hard political power to make or break laws and policies.
If you care about voting rights, do not become an activist. Become a politician, and marshal support for a bill.
If you care about government surveillance, do not try to fix the problem through your lawyer. Become a member of Congress and marshal support for a bill.
We want to have our cake and eat it. To solve the problems of society without making sacrifices. To go home at 6pm and tell the wife that you won in court against the government, have successfully nullified the government's surveillance powers, go to bed at 10, and go to work in the morning. Rather than leave your field to run for office, and possibly make a permanent career change. How many software engineers on this forum would consider becoming full time politicians for the remainder of their career and leave the tech field entirely? Few. Because as much as we like to write walls of text about the issues we pretend to be passionate about, few of us consider these problems to be little more than fictional annoyances that we don't seriously, really care about enough to make personal sacrifices to change. /rant
> "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"
To which, of course, Clapper answered, under oath,
> "No, sir."
And then, later, as the article recounts:
> Upstream's existence was revealed in leaks by former NSA contractor Edward Snowden in 2013 and the lawsuit was filed in the aftermath of those revelations.
Or as Snowden puts it:
> "seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress"
The legislative branch cannot check the executive branch if the executive branch simply lies when asked "are you violating the Constitution?". I have no idea why Feinstein herself (as then chair of the Senate Intelligence Committee) doesn't laud Snowden as a hero for revealing the truth: that the committee she chaired got lied to. I have no idea why California continues to re-elect her, beyond they see "Democrat" and vote. Choose a different democrat.
Also not on discretion of the senators or anything, basically the state should be by its own law required to act immediately with high priority and trying to avoid that should also handled with penalties the same way.
I imagine the Senate could have ordered Senate's Sergeant-at-arms to take Clapper into custody. The Senate probably decided not to do that for reasons they thought were good ones, even if you or I might disagree with those reasons. I'm not exactly sure how things would have worked from that point; I expect it's really hard to arrest and try someone for a crime when the executive branch doesn't want to pursue things.
> I have no idea why California continues to re-elect her, beyond they see "Democrat" and vote. Choose a different democrat.
I've done so, every time she comes up for re-election, but so far for some reason the majority likes her...
You know, just like in every other criminal trial where the defendant is the one who gets to make the determination as to their own intent.
I don't think there is any dispute that such records actually exist.
- You succeed in becoming a politician with the power you need, but in the process you either no longer care about your original goal, or are bound by enough deals with other people that you can't do anything about your goal.
- You succeed in becoming a politician, but you get marginalized because your co-workers realize you can't be trusted to play along.
- You fail at becoming a politician, because your co-workers realize you won't play along, and ensure you never get anywhere close to any power.
The way I see it, the whole system has evolved to protect itself from changes that hurt its participants.
What about the rest of the owl?
Sort of like presenting a decades long journey of politics as:
>Become a member of Congress and marshal support for a bill.
Or telling people they should just:
>Gain some hard political power to make or break laws and policies.
Because it certainly read to me that the parent is grossly understating the effort, time, commitment, and luck required to just "become a member of congress" and wield "some hard political power to make or break laws".
They make it seem like tomorrow I can walk into Congress and get to changing laws by Monday. Hence, where's the rest of the owl?
Nowhere in the original post does the word "just" appear. I don't think the poster was being flippant at all, or was suggesting that taking this path is easy, or one to be taken lightly. Just that it should be no surprise that trying to take the "easy way" to change public policy is not one that's likely to work. (Or, rather, that trying to change the government from the outside, on a part-time basis, is going to give you limited results.) Doing so is very hard, and might require a career change if you are serious about making a difference.
Yes, that's why it isn't part of the stuff I quoted, it's part of what I wrote.
>I don't think the poster was being flippant at all, or was suggesting that taking this path is easy
Well, I suppose our opinions wildly differ on that.
I didn't get that impression at all.
“The major problem—one of the major problems, for there are several—one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them.
To summarize: it is a well-known fact that those people who must want to rule people are, ipso facto, those least suited to do it.
To summarize the summary: anyone who is capable of getting themselves made President should on no account be allowed to do the job.
To summarize the summary of the summary: people are a problem.
And so this is the situation we find: a succession of Galactic Presidents who so much enjoy the fun and palaver of being in power that they very rarely notice that they’re not. And somewhere in the shadows behind them—who? Who can possibly rule if no one who wants to do it can be allowed to?”
There is hope for software engineers working together to improve access to information instead of, argh, becoming all politicians. That also would be to the detriment of the entire human race which wouldn't have as many software engineers.
But, if you actually want to change the country, you must first go into finance or otherwise accumulate the wealth and influence needed to "corrupt" enough legislators into abolishing the current campaign financing and lobbying rules, so that all those whom you exhort might actually have a chance of winning office. Note this also immediately removes your source of power (not something people often do voluntarily).
I really don't see an obvious way to change things from within the system. I hope there is, otherwise we get either unending corporate feudalism or revolution.
I'm not saying revolution would be desirable (heck, I wouldn't have supported the original American revolution - why kill people over taxation?), but the concept of revolution is some weird persistent American fantasy just because it miraculously worked once three centuries ago against an adversary across the ocean during the Age of Sail (and when France immediately tried the same thing, it devastated their country). It doesn't even bear mentioning today.
Anyway, undermining corporate feudalism seems more likely. People just have to sacrifice convenience and support ethical small businesses. Corporate behemoths rely on the masses for profitability. Cut that off, and they have no legs to stand on.
The military is made up of citizens who would likely be divided in case of a revolution. And what the last several military involvements have shown, if anything, is that a bunch of motivated amatuers with ready access to guns and extensive knowledge of the terrain can give our elite military serious problems.
> ...undermining corporate feudalism seems more likely. People just have to sacrifice convenience and support ethical small businesses.
I am dubious that we can essentially consume our way out of our political problems.
First stop would be to run for a local elected office, like a school board, county/city treasurer, or something like that. If your city has some sort of city council, work your way up to that. From there, give mayor a go. Next stop might be your state legislature. From there, you might have enough popularity and name recognition to run for the US House. If the US Senate is your goal, you may have to spend more time at the state level -- controller, secretary of state, perhaps lieutenant governor or governor -- before you'll have the backing for a US Senate run.
And that's the thing. Even if everything goes to plan, you're looking at 10-20 years before you're competitive enough to get into US Congress (either chamber, but the Senate will take more work and time). I'm not surprised that it's hard for people to go from "I'm really upset with how the US is turning into a surveillance state; I wish there was something I could do to change that", to "I'm gonna ditch my existing career and dedicate the next several decades of my life to politics". And consider that doing all that is no guarantee you'll be successful! Even if you make it to the House or Senate, it'll still be a hugely uphill battle to get any kind of surveillance reform bill passed and signed into law.
It's like a freemium game that you pay for by gradually selling out to those who already have power. Sure, theoretically it's possible to win the freemium game without selling out, but that theoretical possibility serves only as marketing for the game itself.
This is why some of us oppose "big government". It's not necessarily that we all want a wild west with no laws, but there are a lot of layers of government between a citizen and national government and ideally as much decision-making power sits as low on that pyramid as possible so that people can plausibly "self-govern".
It also means that policies can be tailored to the needs of the people. The needs of dense urban populations are different from the needs of rural farmers, so you can't effectively govern both at the national level.
What other option is left, aside from rebirth? It's no coincidence that dark forces conspire to now "get out in front" of this zeitgeist and swap the baby in its cradle for something ugly.
If you want the hypothetical power to save the environment but no ability to effectively do so become a politician.
If you want to save the environment, become a billionaire. They are the only ones with the power to move the needle in a way that isn't limited by bumper marketability to the media.
> Trying to litigate a matter of national intelligence through the courts is the wrong approach to use. The government has nearly unlimited powers in matters of national security, which includes the collection of intelligence. The right approach for those who believe to have standing is to write to your congressman or senator, especially if they sit on the House or the Senate Intelligence committees.
This isn't the way the government is supposed to work. We cannot count on the legislature to pass constitutional laws in all circumstances, that's why we have these landmark court cases that overturn bad laws. To say that the real solution is to just hope and pray that the legislature comes to their senses and reforms the laws themselves completely circumvents the role of our courts. If that was realistic, why do we have courts at all?
But clearly this is how the government currently works. If you don't want it to work that way, you'll need to change it.
>To say that the real solution is to just hope and pray that the legislature comes to their senses
No, the solution isn't hope and prayers, its activism, donations and getting others politically involved (especially about things that aren't the president).
> Judge Diaz [Obama] wrote the majority opinion, in which Judge Motz [Clinton] joined as to Parts I and II.A, and in which Judge Rushing [Trump] joined as to Part II.B.2 and C.
> Judge Motz [Clinton] wrote an opinion concurring in part and dissenting in part. Judge Rushing [Trump] wrote an opinion concurring in part and in the judgment.
Three judges from three administrations and both parties, all in agreement and disagreement. It's that way because they're a circuit court and they're applying law and precedent.
There was dissent because it's not about applying law and precedent, but interpretation and choosing to apply or not.
> that's why we have these landmark court cases that overturn bad laws.
Because the court is subject to the population's prevailing opinion, in part. As public opinion shifts, so do courts (over longer cycles ofc).
> The courts are an independent body of government, the legislature has (and should always have) zero impact on the way that the courts make decisions
Wrong on all counts, around the world, throughout time. Pointing to concepts of "court impartiality" is like arguing about "pure democracy", discounting the human behavior when discussing the reality, is not compelling.
Philosophers since (at least) Plato have tried to theorize a system for impartial philosopher kings, much less declare a profession to point to and say "that person is completely objective". https://midnightmediamusings.wordpress.com/2014/07/06/plato-...
I'm saying they can make the excuse, but there'd be cost pretty much.
If the government invokes national security in a case to prevent the court from seeing evidence, it should be treated as destroying evidence and the court should assume the worst about the evidence that they aren't allowed to see.
The programs in question here are also clearly not national security matters. They were made public, are illegal, and the security of the nation was not affected in any way.
The whole house is built on a foundation of lies.
You have to remember, the default answer to "Can I sue the government?" is No. The only suits you're allowed to take to trial are ones the government has allowed themselves to be sued for.
For example: https://en.wikipedia.org/wiki/Federal_Tort_Claims_Act
While I think the entire idea of sovereign immunity is bullshit, the chance of the doctrine being overturned is next to 0. So we have to live with it. The point is, you're kind of lucky to even get as far as getting this dismissed over state secrets.
The real problem with the state secret doctrine is when the feds intervene in a suit between two private parties.
AFAICT, this was not a torts lawsuit. Wikimedia was not suing for damages, it asked the courts to declare certain government practices illegal and/or force the government to desist these practices.
This is the meat of the problem with pervasive surveillance. Until this matter is resolved in such a way that makes any surveillance without a warrant be deemed unconsitutional, the idea of 'freedom' is only a ghost in the U.S.
These kinds of abuses must be addressed by Congress, not the courts.
You cannot make an informed choice without transparency.
How this balances with things that actually need to be secret is the difficult part, but clearly, the US is failing to find that balance.
- Yes, Prime Minister
The government is citing "national security" to avoid damage. A good legal summary is here: https://www.thehindu.com/opinion/lead/pegasus-is-indias-wate...
It should scare everyone in the country that you could go to prison and ruin your entire life for omitting information on tax forms etc but the Government can do far worse with with facts that the public needs to make an informed decision at the polls and get away with it.
Kind of like this: https://www.youtube.com/watch?v=zWKxWR7rehw&t=5335s
> While precise numbers are hard to come by (because not all cases are reported), a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases." - John Dean https://en.wikipedia.org/wiki/John_Dean
The classic "you can't prove we did anything illegal, and if you did, that in itself would be illegal" defense. Fuck these people, seriously
Ah, hell, I can't make these Yakov Smirnoff jokes work any more. I guess that's when you know things are getting pretty bad.
Democracy and secrecy are mutually exclusive.
We need you to vote on this issue but we will hide all the relevant facts.
One of the mechanisms for this is secrecy; others are selective information disclosure, propaganda, cultural and religious signaling etc. And then there's more direct application of economic or physical pressure.
If these weren't in place and effective, well... I am reminded of the famous maxim:
> If voting could change anything, it would be illegal.
I first heard this from Jello Biafra, but apparently it has been attributed to Emma Goldman, Mark Twain and is probably even older than that.
In fact, the polarization we often decry is largely because of transparency. It's harder to nail someone to a cross on partisan radio if it's "the committee decided this" instead of "x voted y."
Whether such decisions are better or not depends on the specific circumstances and one's subjective perspective. Populism generally translates to more extreme politics, but sometimes more extreme is what you need to dig yourself out of a hole. Conversely, less pandering to popular opinion generally means more insider arrangements and other institutionalized corruption.
Instead you would likely see the dominant party passing extreme legislation on 51/49 majorities, with every politician being able to claim that actually they were a centrist and they voted against the legislation (and it must have been disloyal members of the other party that enabled the vote to pass).
In fact, the veil of secrecy might even allow members of a minority party to claim that they are against some extreme policy, but actually collude with a faction from the majority party to narrowly pass it, either because it benefits the politicians themselves (at the expense of their voters) or because the extreme outcome would motivate their supporters to re-elect them.