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]
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.
> 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.
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.
>> 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.
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.
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.
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.
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.
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.
For the record, to illustrate an example of mischaracterization, when he wrote "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...", I would not classify that paragraph as a "wholesale defense of secrets". But if that's how you see it, that's how you see it.
"Moreover, Gilmore had actual notice of the identification policy. He alleged that several airline personnel asked him for identification and informed him of the identification policy. They told him that in order to board the aircraft, he must either present identification or be subject to a 'selectee' search. He also saw a sign in front of United Airlines’ ticketing counter that read 'PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN.' Although Gilmore was not given the text of the identification policy due to the Security Directive’s classification as SSI, he was nonetheless accorded adequate notice given that he was informed of the policy and how to comply"
I happen to think the Gilmore decision was wrong, but the issue in the case wasn't about secret laws, it was that you don't have a Constitutional right to fly on a commercial aircraft.
Down the rabbit hole. Not only are there secret laws, but now courts are being made to interpret secret laws they aren't permitted to see. Or rule based on evidence they aren't permitted to see:
> The extraordinary limitations in place for the prosecution of Shamai Leibowitz, who was sentenced to 20 months in prison for disseminating classified information, meant that even the judge sentencing him did not know what he was supposed to have leaked. "All I know is that it's a serious case," Judge Alexander Williams said last year. "I don't know what was divulged other than some documents, and how it compromised things, I have no idea."
Secret laws violate Due Process according to our own previous interpretations. They were derided as the hallmark of totalitarian regimes, the kind of thing the Soviet Union and Eastern Bloc countries did. NOT the United States, with its much-vaunted Constitution.
Well, it turns out that if the people in power want to shred your civil rights, they WILL do so. At most you can ask them to pretty please respect your Constitutional rights, and then they'll say no. It doesn't matter that their behavior is illegal because nobody can make them comply. "Golden Rule: He who has the gold makes the rules..."
"The President, when using military force against American citizens on U.S. soil, is ”free from the constraints” not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights — including First Amendment liberties, Due Process rights, and the takings clause"
(Note it's a long article and you have to click to "Continue Reading")
The big question - how did the judge know that what was divulged was actually consequential?
It can't be something that could just have sensitive parts redacted, or even something that could be described (i.e. the blueprints for a new weapon, a list of secret agent identities, or an analysis of likely targets).
It must be information thats mere existence is damaging, like "a video of our troops gunning down innocent civillians".
OK, in this case it was more benign - probably something about the US tapping into Israeli communications. But still, if they've done nothing wrong, what do they have to hide?
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.
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.
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.
They're all out there to push their own agenda and profit from what they print, and one act considered in isolation cannot be the sole deciding factor for the integrity of a publication.
I can't speak for US media but the News International scandal we've had in the UK, and the corporate reaction to the allegations, pretty much says it all. "We're doing it for the good of the public!"
Maybe. There's always the aclu [1], and I'm a proud donor. It's also worth noting that the NYT hasn't always been on the side of the angels. See for example the iraq war -- if Judith Miller wasn't literally blowing the administration she was certainly doing so on the pages of the paper, and it's hard to imagine the NYT's support for the war didn't have an impact on the politics of the support on the left for the war.
As for something like fox news, well, I recently saw a survey that I can't produce on hand demonstrating their audience was actively misinformed about the issues of the day.
Anyway, I feel better about not for profits like the aclu than about the NYT or fox or whomever acting as bulwarks against government overreach.
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?
This is assuming that there is a trial at all. The Obama administration has already made clear that it has the power to execute US citizens without trial.
so let's say it's world war ii and i'm a us citizen. i get on a boat to germany and join the german army. do you think a us soldier is not allowed to shoot me because the constitution allows me a trial before "execution"?
No, it's not considered murder to kill a wartime enemy in compliance with the laws of war.
The parent is probably referring to the drone strike in Yemen that successfully killed Anwar al-Awlaki, a US citizen. Here the issue isn't his death, but the process leading to it.
The circumstances surrounding al-Awlaki's death might be legally justifiable - apparently there's a 50-page DoJ memorandum arguing that it was. I'm certain the 'wartime enemy' argument was used.
However, the public will never know if the death of al-Awlaki was justifiable, because that memorandum is secret. The executive order that led to al-Awlaki's death is secret - the Obama administration is refusing to discuss any US involvement. The evidence that informed the executive order leading to al-Awlaki's death is secret.
I'm not a naïf. I'm prepared to concede that under certain quite rare and specific circumstances, it might be justifiable for the US government to kill a US citizen without full due process - I'd choose that, say, over a nuke going off in Manhattan. But there must be some judicial oversight.
At the moment, we have no idea how many US citizens the president has ordered killed - and because the details behind these are 'state secrets', normal checks and balances against the abuse of power do not apply.
I've got no sympathy for al-Awlaki, but this is as good a definition of tyranny as any.
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.
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:
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.
Is the only thing that changed in Obama's position his stance on security? If not, then I think there are several very simple explanations that might apply:
* He didn't mean some or all of the things he said as a candidate and never intended to take action on them.
* After he took office, he had to answer to more powerful interests who would not allow him to take action on campaign promises.
* While campaigning, he promised things that he's incapable of taking action on, whether he knew it or not at the time.
Any of these explanations could be applied to any recent candidate for the office of PotUS.
>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.
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.
Check out Crypto by Steven Levy for an example of large gov agencies like the FBI/NSA influencing the government. In the 90s there was a big push for crypto and the government was afraid that it would loose all ability to obtain unencrypted communications so they created the clipper chip(http://en.wikipedia.org/wiki/Clipper_chip). Basically a secure encryption device with a backdoor held by some government agency requiring a warrant to obtain.
While this scheme was being hatched, an election happened and Clinton was elected. The FBI and NSA went on all out propaganda mode with the new elected officials to convince them that the end of the US was near if this wasn't forced on the people. While Clinton and his entourage were against this stuff during the campaign and seemed pro tech industry they quickly switched stance in favor of the new plan. The public outcry at the time prevented the clipper chip from ever getting accepted but it took a lot of bad press about it, something we don't see today with the new crappy laws.
So frankly I can see how this could happen to Obama and his administration. The FBI was one of the worse groups in this story, they wanted even more than just keys obtainable by warrant they wanted a phone away ability to get the decryption keys. I don't think they are any less power hungry today. And with a monster the size of the DHS the misinformation/influence must be even greater.
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?
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.
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.
> 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.
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?
With low voter turn outs in most nations I'd say citizens fail to inform themselves already, so democracy in its purest sense doesn't really make any sense anyway.
Democracy presently relies on political parties alienating people from each others candidates and relying on attrition of the voter pool to get elected.
Well the Republicans lost by 3% in key states, so we only have to reduce the Democrat voter turnout so lets run a stronger smear campaign.
We recently had this in Canada with the Conservatives. They knew they could get a majority with only 44% of the popular vote (I'm not sure how that even works or makes sense to anyone that a minority of votes can give a majority government).
I understand your point that "Democracy" is roughly equivalent to universal sufferage, but the point is that a public unaware of the laws and interpretations thereof created by our government cannot make informed decisions about their leadership.
The USA is not a Democracy (in the pure sense), it is a Democratic Republic, this is a critical difference that is missed or not understood by the majority of the populous and is critically important not only in this instance but in the general case.
The US is a democracy, a word that describes a category of governments one of which is our democratic republic and another of which is a direct democracy; both are types of democracies. Stop this we're not a democracy non-sense, it's absurd.
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.
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)
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[edit to add]
http://en.wikipedia.org/wiki/Gilmore_v._Gonzales