NYTimes Sues US For Refusing To Reveal Secret Interpretation Of Patriot Act

http://www.techdirt.com/articles/20111010/04043716279/nytimes-sues-federal-government-refusing-to-reveal-its-secret-interpretation-patriot-act.shtml

by there • 15 years ago

313 69 15 years ago

techdirt.com

acabal• 15 years ago

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?

LargeWu• 15 years ago

The real problem is that we have laws that are classified.

0x12• 15 years ago

You thought you were joking:

http://nsarchive.files.wordpress.com/2011/03/exemption-5.jpg

eli4• 15 years ago

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.

RCFP has a nice overview of the process, if you're interested in the details: http://www.rcfp.org/fogg/index.php?i=intro

Sukotto• 15 years ago

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]

[1] http://www.paulgraham.com/say.html#Pensieri-Stretti (pg, please put anchors in your essays)

[edit to add]

http://en.wikipedia.org/wiki/Gilmore_v._Gonzales

potatolicious• 15 years ago

TIL I am expected to be aware of, and follow, a law that I cannot see.

Someone stop this ride, I want to get off now.

ubernostrum4• 15 years ago

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.

neanderdog• 15 years ago

A nation of precedence, however ironic. https://en.wikipedia.org/wiki/The_Trial

eli4• 15 years ago

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.

wnight3• 15 years ago

Nor to drive or walk the roads, use money, use a computer, etc.

The constitution doesn't grant rights, it defines the limits of the government we approve to govern us.

andylei2• 15 years ago

an enlightening quote from Gilmore v. Gonzales:

"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"

seven_stones• 15 years ago

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."

http://www.independent.co.uk/news/world/americas/secret-tria...

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..."

If you really want to be concerned, check out this Glenn Greenwald article: http://politics.salon.com/2009/03/03/yoo_5/

"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")

wisty• 15 years ago

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?

aes• 15 years ago

What parts of Patriot Act are secret?

sukuriant• 15 years ago

The interpretations of certain parts of the law are secret.

suivix• 15 years ago

Just another day of Bush in office... oh wait.

Shivetya• 15 years ago

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.

electromagnetic2• 15 years ago

> 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.

hnhg• 15 years ago

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?

lhnn• 15 years ago

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.

ugh• 15 years ago

Exactly. Citizens have to be able to inform themselves. Democracy wouldn’t make any sense otherwise.

electromagnetic2• 15 years ago

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).

mbell• 15 years ago

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.

gnaritas• 15 years ago

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.

Andrew_Quentin• 15 years ago

I am confused. Is it not the judges who interpret the act, the law, etc, not the fed or the government.

jarrett• 15 years ago

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.

pyre• 15 years ago

When/if you end up in a court room. The police/FBI decide who to bring to the court.

meric• 15 years ago

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?

splat• 15 years ago

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.

andylei2• 15 years ago

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"?

zandor• 15 years ago

You should read a bit about Nicholas Merrill who got a National Security Letter and subsequently sued the FBI and the DoJ.

Wikipedia: http://en.wikipedia.org/wiki/Nicholas_Merrill

Wired: http://www.wired.com/threatlevel/2010/08/nsl-gag-order-lifte...

Talk at CCC: http://www.youtube.com/watch?v=C25EkdWLU1k

georgieporgie• 15 years ago

Talk at CCC: http://www.youtube.com/watch?v=C25EkdWLU1k*

That was slow to get started, but became very* interesting quickly. Thanks for posting it.

eli4• 15 years ago

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.

switch007• 15 years ago

Is this sarcasm? Do you work for News Corp? This kind of insanity from governments shouldn't exist in the first place!

noonespecial• 15 years ago

It does. And will. So we might need News Corp.

“In normal times, evil should be fought by good, but in times like this, well, it should be fought by another kind of evil”

grandalf2• 15 years ago

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.

RexRollman• 15 years ago

Did you really believe that the New York Times was infallible?

earl• 15 years ago

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.

[1] http://action.aclu.org/site/PageServer?pagename=FJ_donationh...

eli4• 15 years ago

OK, but this lawsuit is textbook journalism. And the ACLU could be doing it, but they aren't. In this particular instance the Times is.

FuzzyDunlop• 15 years ago

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!"

Like fuck they are.

jrockway• 15 years ago

What depresses me most is how Obama is no better than Bush at this sort of thing. It's not Democrats vs. Republicans: they're all out to get us.

mcantelon4• 15 years ago

Yup. Both parties work for the same lobbyists.

dasil003• 15 years ago

Who's lobbying to have secret laws? Smells more like government conspiracy by non-elected officials.

mcantelon4• 15 years ago

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.

shareme• 15 years ago

Simple explanation:

1970s saw abuse of CIA/FBI power concerning spying, etc on US citizens.

Late 1970s laws passed curtailing that power

911 happens same agencies decide to broker a push to get those powers back..thus we have the Patriot Act

mcantelon4• 15 years ago

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:

http://www.cnn.com/2009/POLITICS/09/09/homeland.security.hea...

nkassis2• 15 years ago

reminds me of this onion video: http://www.youtube.com/watch?v=HWfKdKWJEkM

InclinedPlane• 15 years ago

Most transparent administration in history.

NYTimes Sues US For Refusing To Reveal Secret Interpretation Of Patriot Act

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