White House Tries to Prevent Judge From Ruling on Surveillance Efforts

http://www.nytimes.com/2013/12/22/us/white-house-tries-to-prevent-judge-from-ruling-on-surveillance-efforts.html?_r=0

by rosser • 13 years ago

408 65 13 years ago

salient• 13 years ago

EFF is doing such amazing work with these lawsuits. I hope people remember to help them out and donate:

https://supporters.eff.org/donate

You could also help this campaign for privacy tools which NYT and many other journalists are going to need from now on, to reach its goal:

https://pressfreedomfoundation.org/

rz2k• 13 years ago

One extremely easy way to donate is Amazon Smile [1]

With the Firefox[2] and Chrome[3] extensions you automatically access Amazon through the Smile portal so that Amazon makes a donation equal to 0.5% of all your purchases to the charity you chose. Even if you spend $10,000 that only comes out to $50, but it's a start.

[1] http://smile.amazon.com/gp/charity/change.html

[2] https://addons.mozilla.org/en-US/firefox/addon/amazonsmilere...

[3] https://chrome.google.com/webstore/detail/smile-always/jgpmh... OR https://chrome.google.com/webstore/detail/amazon-smile-redir...

mortyseinfeld• 13 years ago

Thanks for the reminder, just did.

pvnick• 13 years ago

  So, [Clapper] said, he was continuing to assert the state
  secrets privilege, which allows the government to seek 
  to block information from being used in court even if 
  that means the case must be dismissed.

It's almost funny to see the administration's hypocrisy on full display. They seem to think that if they keep pushing this issue under the rug that it'll just go away. The Obama administration wants to have its cake and eat it to. On one hand, Obama wants to retain support from the folks who elected him to dismantle these abuses, so he sets up an "advisory board" to "investigate" the reports. On the other hand, he remains silent while his staff lies to congress, and he rejects the recommendations by the review panel.

We'll need someone like rayiner to weigh in (I have almost zero legal expertise), but some wikipedia reading says that while the state secrets privilege was recognized by the supreme court, the government's case was later found to be fraudulent [1]. Clapper's assertion is such a glaring abuse that I would hope it could set up another supreme court challenge to the privilege. More wikipedia-ing seems to suggest that might be possible [2].

I'm optimistic. The parties who have a stake in the surveillance apparatus have been on the defensive now for half a year, and it's obvious they're losing ground (example FTA: "Still, Mr. Clapper’s description of the program as 'an important tool' for tracking possible plots was a downgrade in rhetorical urgency. In earlier, now-declassified court filings, he and other officials had portrayed it as 'an essential tool.'"). I do actually have hope that we could see some real reforms, and for someone like me to say something like that is a big deal.

[1] http://en.wikipedia.org/wiki/State_secrets_privilege#Supreme...

[2] http://en.wikipedia.org/wiki/State_secrets_privilege#cite_no...

greenyoda• 13 years ago

"They seem to think that if they keep pushing this issue under the rug that it'll just go away."

That's definitely a time-honored political ploy, but it doesn't look like this issue will go away any time soon since most of Snowden's massive cache of information hasn't been published yet. As more NSA documents come to light, this will keep generating new headlines. It's likely to still be in the news during the next presidential election.

pash• 13 years ago

I hope the administration's lawyers just walked into a trap.

Ordinarily, when the government asserts its state-secrets privilege (which dates only to the 1950s), a judge privately reviews the evidence to see whether it seems plausible that proceedings would reveal state secrets.

Now that the admistration has asserted its secrets privilege in this case, the appellate court can very appropriately circumscribe the privilege, ruling that it cannot be asserted to prevent a challenge to activities that appear unconstitutional, prima facie, under the private review that is already required.

That would be a great outcome, one that might not only roll back the NSA's surveillance programs, but also reinvigorate our most important check on executive power.

meddlepal• 13 years ago

I see this a lot in NSA topics about how some new legal challenge might reverse NSA activities... Why does anyone think this will work? The NSA is accountable to the executive. The executive is responsible for enforcing laws but can selectively enforce... Why would it limit it's own power?

rayiner2• 13 years ago

State secrets doctrine was just tacitly upheld a couple of years ago in General Dynamics. I don't think the Supreme Court is willing to entertain a challenge to the doctrine any time soon.

That said, state secrets doctrine is not a get out of jail free card. Both General Dynamics and Reynolds were contracts cases. There was no allegation that the government was exceeding the scope of its domestic powers. Dismissing a case on state secrets grounds has a separation of powers implication when the government invokes the privilege in the face of allegedly unconstitutional activity than when it invokes it in a contractual dispute. Historically, the courts have given much more scrutiny to claims of national security privileges when such claims prevent them from reviewing Constitutional questions. Especially in this context where the cat is already out of the bag.

DannyBee3• 13 years ago

"I'm optimistic."

Don't be. The supremes have made it clear as recently as last year they have little to no interest in this one.

willnorris• 13 years ago

do you not think that the revelations in the last year might change that?

rayiner2• 13 years ago

I don't see Roberts embracing a reading of the state secrets privilege that essentially makes these sorts of constitutional claims unreviewable. What was on the line in both Reynolds and General Dynamics was money. The justices were quite pointed about this in General Dynamics, accusing the company in oral arguments of just being greedy, etc. The assertion of the privilege in at least some of the NSA cases raises countervailing issued that didn't exist in Reynolds and GD. If the Court does decide to take up the issue, I think the government will find the privilege less helpful than they might wish.

edit to my other comment: Reynolds wasn't a contract action, but a tort action, but what was essentially on the line was damages.

scotty79• 13 years ago

"You can't outlaw this beacuse it's super secret" defense.

amark• 13 years ago

Basically what they're saying is "we're ok with subverting the constitution if it fits our needs".

The executive branch's power has gotten completely out of hand in the past decade, all under the guise of "security" and preventing "terrorism". The reason the judicial branch exists is to stop crap like this. If they can't do their job constitutional balance of power doesn't exist.

babesh2• 13 years ago

The 3 branches of government were for settling disputes between those in power, not for those without power.... without all out war. If you look at history, look at the division of new states into equal portions of slave and non slave prior to the Civil War. Balance of power between Northern trading/industrial interests and Southern plantation ones. In this case, the countervailing power are businesses that cannot sell overseas because of this. So if anything changes, focus on external software versus domestic where they already have you over a barrel.

patrickmay• 13 years ago

"In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."

mabhatter• 13 years ago

As President he's "supposed" to fight for this, even if it's crap. That's how our "adversarial" government works. That's why it's CHECKS... As in gloves off, missing teeth, hockey checks.

It's up to the other TWO BRANCHES to get off their lazy asses and knock the Executive branch down a peg or two. They liked blaming the President but they gotta do the WORK to take things back. Shut up and FIGHT!

Malician2• 13 years ago

In the case of DOMA, Justice Scalia noted that, if Obama thought DOMA was unconstitutional, he could simply refuse to enforce it.

http://www.law.cornell.edu/supremecourt/text/12-307#writing-...

Doesn't this suggest that it is, to some extent, the President's responsibility to maintain his own branch?

Or do you think Scalia is wrong in both cases?

rtpg• 13 years ago

Where exactly is it said in there? I'm having a hard time finding something that means that. And in a more general sense, isn't the executive bound to laws passed by congress?

Slightly off-topic, but the fact that Justice Scalia doesn't believe that the Supreme Court has the right to judicial review. An interesting concept to me.

InclinedPlane2• 13 years ago

What?! Nonono, that's not how checks and balances work.

Checks and balances prevent abuses by other branches, but it's not like a courtroom, it's still possible for everyone to get along and be nice and open with each other. Indeed, that's expected to be the typical behavior except in unusual circumstances.

joering2• 13 years ago

“Disclosure of this still-classified information regarding the scope and operational details of N.S.A. intelligence activities implicated by plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States,” wrote the director of national intelligence, James R. Clapper Jr.

I am really getting sick and tired of listening to this dirtbag scum motherfucker. He lied to the congress (willfully knowing upfront what the questions would be), something you or me would be behind bars for 10 years at least, but yet Obama promotes him to oversee NSA program. What a joke.

mitchty• 13 years ago

Keep in mind he's not being promoted, he's the fall guy if things go south. Basically he's being setup to be the lightning rod if things go bad.

Note the new talk about possible pardons. My take on the tea leaves is that they now realize that Snowden has been saving the best for last (or later). And that he's only revealing whats needed to effect change. If they don't start damage control the right way Clapper is going to be thrown under a parked bus as fast as the media can spin it.

As soon as the bad stuff comes out Clapper is going to get to be the fall guy. He won't get replaced until something bad gets revealed. Then a "reformer" will be brought in. Least that would be the PR way to approach it. Not sure it'll work in this case but old tricks are the best tricks.

Course I could be wrong, eh we'll see.

mikevm• 13 years ago

   My take on the tea leaves is that they now realize that Snowden has been saving the best for last (or later).

Snowden is not leaking anything. He leaked most of what he had a long time ago, and now the documents are in the journalists' hands.

Theodores4• 13 years ago

This is great - they are making it worse for themselves!

Before the Snowden revelations came along nobody took you seriously if you thought we lived in a world of mass surveillance. Now we all know all too well that we do.

As the scandal unravels the government are clinging to the 'terrorism' fig leaf. They haven't got anything else, no other plausible excuse for what they have been up to. Nobody has completely seen through it yet, or, if they have then they haven't shared with the rest of the world exactly what it is that they are hiding. (There is something else going on, the 'al-qaeda' thing is just a ruse, however nobody really believes that it is a complete, total, utter sham of emptiness. We aren't there yet...)

They are going to have to squirm for a little bit longer before the grand reveal. Exactly who steps up to do this is not known, however, there are plenty of candidates out there, getting bolder by the day. One thing is for certain though, that grand reveal will happen and, when it does, this NSA spying lark will be put into perspective. That perspective will show the spying story so far to be nothing more than an appetizing 'light snack' before the immensely satisfying main course. Compared to what we have got coming the fall of the Berlin Wall was nothing!

Anyone care to guess what the ace is that trumps the government's 'terrorism' card? (There is one!)

mcantelon• 13 years ago

Nope. So what's this ace of which you speak?

ChristianBundy• 13 years ago

I'm probably missing something obvious, but what evidence is there to suggest that there's an ace that trumps the government's terrorism card?

I want to be optimistic, but I'm not really sold on the idea that we have the information, and that it's just a matter of time until it's released to the public.

Theodores4• 13 years ago

Good!

A year ago nobody imagined that all of this Snowden stuff would come out, did they? Yet he was clearly working on something that may or may not have worked.

The mass surveillance works two ways: to learn/steal the secrets of the citizenry is one way, the other way is to hide secrets from the citizenry. Some people in government are more concerned with people talking about their secrets, their 'noble lies'. This is because, once exposed and once a cover up gets started, they face a serious existential threat. But we need a bit more public humiliation, loss of trust in the government and more silly talk about 'terrorism' to get the climate right for that. However, rest assured, there is at least one 'existential threat' in a holding pattern, just waiting for the perfect storm...

kordless• 13 years ago

Aliens or AI.

sparkie• 13 years ago

The "protect the children" card. It's already in full use in the UK, with mandatory opt-out porn filtering.

reginaldjcooper• 13 years ago

And sex education filtering.

dobbsbob• 13 years ago

Canada also tried this card unsuccessfully. Lately they've been trumping up phony terrorist busts where they groom crazy people online and sell them inert explosives, then never stop talking about how great their anti terrorist squads are for breaking up plots they themselves plotted

yardie• 13 years ago

China.

They are already engaged in cyberwarfare with the PRC. I haven't met anyone in the security industry that would dispute this. It doesn't generate headlines because no one has actually died. I feel eventually the need of the state will outweigh the diplomatic necessity of maintaining most favoured status with the Chinese.

samgranieri• 13 years ago

James Clapper needs to be fired

CamperBob2• 13 years ago

He needs to experience the same treatment I would experience if I lied to Congress. This treatment would go quite a bit beyond being fired.

sneak• 13 years ago

http://www.hasjamesclapperbeenindictedyet.com

thinkcomp• 13 years ago

The actual case dockets and documents can be found here:

Jewel v. NSA - http://www.plainsite.org/flashlight/case.html?id=1911200

Shubert v. Obama - http://www.plainsite.org/flashlight/case.html?id=1901515

RexRollman• 13 years ago

There really is nothing the government won't do to keep its illegal surveillance powers.

drcube• 13 years ago

Yeah, does anybody think this will actually stop, even if the courts demand it?

atmosx• 13 years ago

But the government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency.

The only one who THINKS that it is unknown whether AT&T and Verizon were obliged by the government to hand over data is the government[1].

I remember when Wikileaks released the cables and US government employees were not allowed to read them. The rest of the world, was reading them anytime though.

In the world of governance I'd expect rationale to be above everything else. Apparently that's not the case in today's world. USA it's just another example, in Greece where I live, common sense has long been gone by politicians and population...

[1] However, there is a minor detail here. If this fact gets court proof, maybe some government members would be in terrible trouble. They can always mention National Security but God forbid, what if they have to bring proof?

oelmekki• 13 years ago

Terrorism has won.

Twelve years later, the country that was so proud to be "leader of the free world" is now affected by a cancer named secrecy and defiance ; defiance from government toward people and defiance from people toward government (well, that last part is not new, but it's not baseless anymore, which make a huge difference).

US should definitely work on trust, especially because their main strength is business and that can't exist without trust.

e12e2• 13 years ago

I'm afraid this all dates back further than 12 years (eg: see Binning at hope 9). There's little evidence the true motivation was to defeat terrorism (if for no other reason than domestic terrorism falls under the fbi, not nsa -- and is and has been arguably the bigger threat).

tinfoil007• 13 years ago

William Binney's keynote at HOPE 9:

http://www.youtube.com/watch?v=dxnp2Sz59p8

all talks:

http://www.hopenumbernine.net/schedule/

anoncowherd2• 13 years ago

> There's little evidence the true motivation was to defeat terrorism

It was never about terrorism. In fact, governments like terrorism because it gives them an excuse to grab more power and strip people of their liberties. The surveillance is about control, power and maintaining it. It's meant to be used against the general populace.

InclinedPlane2• 13 years ago

Terrorism is almost orthogonal to this. This is statism, which has been on the rise off and on through from the 20th century onward and has taken a significant uptick in the last few decades. Even in the freest countries there has still been a rampant diminution of personal responsibility and individualism in preference to state control, regulation, legal expansionism, and so on.

The war on drugs is a big part of that. But other things are too, things that people still have a hard time grappling with intellectually. Labor laws and the welfare state, for example, tend not to actually benefit those at the bottom, they tend to benefit those at the top, no matter the intentions. But in the meantime, a lot more of our money is taken under government control, and a lot more of our daily activities as well. Our country may one day rediscover the value of liberty, but for now it's still a huge messy muddle.

aluhut2• 13 years ago

I'm curous. Could someone tell me how the republicans feelings are towards all this? Are they doing something? They are in some way in a bad position. Much of the stuff has been established under Bush but on the other hand they pretend to "protect the constitution" and of course they don't like Obama.

joelgrus• 13 years ago

It varies, the "national security Republicans" are all for the surveillance, e.g.

http://www.politico.com/blogs/politico-live/2013/12/mike-rog...

whereas the "libertarian Republicans" are just as strongly against it, e.g.

http://www.mlive.com/news/grand-rapids/index.ssf/2013/12/ama...

ScottBurson• 13 years ago

It really is an issue that cuts across party lines. I've found that people of a libertarian bent get offended when I suggest this. If they're Republicans, they think that the GOP is the bastion of liberty and the Democrats are the authoritarians. If they're Democrats, it's the converse. But it seems to me that the issue is pretty close to orthogonal to party affiliation.

One example is California's two senators: both Democrats, but Feinstein is famously authoritarian, while Boxer AFAIK tends in the other direction.

dblarons• 13 years ago

I think this issue is causing real identity problems for many in the Republican party. As noted above, the libertarian wing is clearly against surveillance. However, IMO some of the most fundamental tenants of conservatism are anti-authoritarian, leaving pro-surveillance conservatives on the wrong side of the aisle in many respects.

It is absolutely astonishing to me that so many conservatives defend mass surveillance. As for the laws being established under Bush, I don't actually see that as a factor in many people's minds. I find that many conservatives hardly consider Bush to be an exemplary Republican and thus aren't ashamed to criticize his presidency. Many of his policies were so contradictory to the core conservative philosophy (education reform, surveillance, Patriot Act).

Of the conservatives in my area, I'm hearing everything from people who care a lot all the way to people who have no idea there were leaks. Which, it is important to note, is what makes this issue so strange. From what I can tell, the same has happened in the Democratic party. Crazy!

aluhut2• 13 years ago

This sounds really crazy and paradox. Thank you all for the insight.

babesh2• 13 years ago

Obama is a politician: someone who says anything to get elected and once elected does what he wants instead of what he said he would do. A politician tries to amass power. Information is power. There is NO way the government would give up that power. Don't expect him to do anything nor should you expect most politicians nor the next administration.

White House Tries to Prevent Judge From Ruling on Surveillance Efforts

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