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A court case so secret, US Govt says it can't go on (nzherald.co.nz)
292 points by BrandiATMuhkuh on Mar 29, 2015 | hide | past | web | favorite | 89 comments

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.

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

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?

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.

See any prosecutors' office's standard practice of 'papering' an uncooperative judge. This does happen.

Ex: http://www.kcrw.com/news-culture/shows/orange-county-line/pa...

Soldiers and police do it every day.

Those aren't even the most dangerous jobs in the US. Garbage collectors and construction workers face a higher chance of maiming or death every day than soldiers or police officers.

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.

> it should lose the case, not win it.

It's sad that we've gotten this bit of public policy wrong.

We have standards for the willful destruction of evidence; the same could apply directly to secrets. "Okay, if the secret is serious enough-- you can keep it, but we're going to interpret that in a manner which is against your interests."

This allows for a reasonable decision to take place over what should and shouldn't be kept from the courts. No one expects national security to be cheap, if the government needs to lose some cases to keep its secrets then so be it.

Otherwise, the outcome we have now where the state claims secrecy at every point it can possibly get away with it is inevitable: it's the best strategy because there is no cost to it. Arguably, government attorneys wouldn't be doing their job if they didn't try for it. It's the job of the public, congress, and the judiciary to tell them no in the interest of having a functioning legal system.

If my secret is so important that I can't tell it in court, even in my defense, I would lose my case.

So should the government.

> 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.

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.

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

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

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?

> 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.

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.

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.

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.

> 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.

Seems to be entirely unreasonable to say "I have an objection but you can't hear it."

Honest question, was that ever in doubt by any thinking person? The article here claims a _former CIA director_ founded it.

The case is between two private parties. The government is interfering in the case on their own behalf, not as plaintiff or defendant.

It's possible that one of the parties _is_ the government, but the secret that is being protected is that fact itself.

I'd say its not just possible, but more likely probable. From the article:

> United Against was founded in 2008 by a former CIA director and a group of retired diplomats to advocate against the nuclear Iran.

Nobody, let alone a former director, retires from the CIA. They just get a cushy desk job in some off-book toe-the-company-line operation.

Except that through their intervention they have laid bare their connection to this private company. They're culpable.

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.

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.

There is no such thing as an ex-spook.

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.


"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.

...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)

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.

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)

> ...precedent.

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

"Precedent" as a term is wider than the specific US legal meaning.

Yes, but if we are talking about the law, then it is confusing at best to use the word.

Regardless of whether it sets precedent in the legal sense, it does set a (disturbing) precedent in the everyday plain-English sense of the word.

The word "precedent" means more than court technicalities. AKA:

precedent adjective 1. preceding in time, order, or importance. "a precedent case"

So this IS a precedent, and it is an important and frightening one, even if some other judge isn't technically allowed to cite it.

Eh, if you're going to quote the dictionary, at least match up the parts of speech. For example

prec·e·dent noun ˈpresəd(ə)nt/ 1. an earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.

But then it becomes clear that maybe this case is not yet a precedent.

Fair enough. But I wonder what value there is in making that distinction; it would be better to argue instead that the decision was made in error rather than that it was made correctly but not to be used as an example.

How can it be clear that maybe X?

Pretend the word maybe is a rhetorical flourish.

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.

Not really.

Oftentimes people get lost too much in the legalese to see the big picture of what this decisions means.

Not to nitpick, but to follow the precedent set by Inigo Montoya, "you keep using that word."

"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.

Not quite retired, WHOIS shows Henley MacIntyre as their contact, who also appears in their 2008 990: https://www.unitedagainstnucleariran.com/sites/default/files...

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=... ), 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 http://www.williscommunications.com/who-we-are/henley-old/

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.

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.

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

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/

[1] http://blogs.reuters.com/alison-frankel/2014/02/18/the-peril...

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

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.

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.

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.

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.

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.

What do you expect when people are raised on dystopian literature? Of course they will be more likely to draw comparisons to what they are familiar with.

"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.

It's misleading to simply say there is "precedent." The first case in which that supposed privilege was asserted, US v Reynolds, is highly dubious, and a likely coverup of wrongdoing. On that basis alone, courts should take a good hard look at whether there is a basis for such a "priviledge."

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.

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.

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.

The parties can appeal.

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.

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.

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

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.

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

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.

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

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.

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


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.

{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...

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.

> 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.

There's still a lot of people whose career foundations are based on the Cold War. If you think of them as developers and bizdev people for foreign policy, you can map a lot of entrenched behaviors and attitudes, akin to writing COBOL in Haskell.

I don't really mind the downvotes but I'm not sure where they're coming from. This court case is especially sensitive right now showing the tensions between the state department and the intelligence services in the interactions with iran. Usually the intelligence services win since they can easily sabotage what state is doing.

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.

> As great as it would be for the government to be completely transparent, that is simply not practical.

That's a naked assertion. Do the thought experiment: What if there was a "super-Snowden" who, after a warning to enable spies to escape, leaked ALL classified information. Everything. The whole ball of wax.

How much day to day security would the US lose? Would the Russian navy land on the shores of Brooklyn? Would the Chinese somehow become an instant dominant power? The fact is, Snowden did not ding our security one bit. The transparency he forced was probably beneficial.

So let's stipulate there is some down-side to total transparency. Would you take the bet that the benefits are greater than the costs?

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?

> 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.

...that is simply not practical. Transparency would hurt the US's security...

I've said it before, and I'll repeat it here: this claim needs to be justified with actual evidence, not just assertions and speculation.

Unfortunately, the evidence is classified.

I could tell you, but I would have to kill me.

This would be a more believable assumption if the US had a history of legitimate use of such power. The last couple decades are full of examples where the US government has used security as a reason to cover up bad behavior.

It's a choice between security and corruption. How much secrecy contributes to either is up for debate. The irony is that it's all top secret so there's no way any of us can know for sure.

In order for the state to keep secrets, it must prove why they need to be secret. You don't just get to blanket everything you do with that excuse.

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