Federal Judge Rejects State Secrets Claims: EFF Case To Proceed

The EFF has been attempting to sue the government over illegal surveillance since the Bush administration, and, despite repeated attempts to have the case dismissed because of State Secrets, a federal judge has now ruled that the case must go forward in public court, throwing out the government's State Secrets argument. From the order: Having thoroughly considered the parties' papers, Defendants' public and classified declarations, the relevant legal authority and the parties' arguments, the Court GRANTS the Jewel Plaintiffs' motion for partial summary adjudication by rejecting the state secrets defense as having been displaced by the statutory procedure prescribed in 50 U.S.C. 1806(f) of FISA. In both related cases, the Court GRANTS Defendants' motions to dismiss Plaintiffs' statutory claims on the basis of sovereign immunity. The Court further finds that the parties have not addressed the viability of the only potentially remaining claims, the Jewel Plaintiffs' constitutional claims under the Fourth and First Amendments and the claim for violation of separation of powers and the Shubert Plaintiffs' fourth cause of action for violation of the Fourth Amendment. Accordingly, the Court RESERVES ruling on Defendants' motion for summary judgment on the remaining, non-statutory claims." Although some statutory claims were dismissed, the core Constitutional questions will be litigated.

Comments

Disgrace

[smittyoneeach]

There sits disgrace
Like fuzz on your face
Of falsehood be shorn
In liberty reborn
Burma Shave

Judicial control is what was missing

[Anonymous Coward]

Military will always expand their power. The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing. Each and every time, warrant by warrant.

When the FISA court granted *blanket* warrants, for all data of a class, on the *trust* that the NSA would filter and only use the portion of the data for the intended purpose it failed its duty. When NSA decided to start storing data on everyone in 4 huge data centers, it clearly intended to keep everything on everyone. Not limiting the data to just terrorists.

Where was the judicial oversight? Kept in the dark by abuse of secrecy.

Re:Judicial control is what was missing

[gl4ss]

The NSA and CIA have nothing to do with the military.

yeah sure.. who controls them? the head of the military. of what institution was nsa transformed from? the military. with whom do both organizations work? with the military..

Re:Judicial control is what was missing

[MarlowBardling]

A secret court, unexposed to public scrutiny, will be abused. The idea that oversight equals accountability outside of the view of the public is fairly trusting, and misses the fact that you're trying to fix a problem by making it bigger.

If the judicial branch of the government is going to work outside the framework of law that it is built upon, the what's the point? Without checks that can actually be checked by an outside agency, there is no way to limit infractions, corruption, and abuse.

Re:Judicial control is what was missing

[ArcherB]

The court system is supposed to be above public opinion and pubic opinion is not supposed to have any effect on the court's decisions.

If the judicial branch of the government is going to work outside the framework of law that it is built upon, the what's the point? Without checks that can actually be checked by an outside agency, there is no way to limit infractions, corruption, and abuse.

No, this court, like any other, would work within the law. The problem is that without the appropriate clearance, judges are not legally allowed to hear the evidence in the case so judicial oversight is not possible right now. All this would be is a court where the judges have the clearance to hear the cases and the evidence. The evidence in the cases as well as most of the information about the cases could be kept secret so these cases could go to court without damaging national security or the government using that as an excuse to keep the cases from ever being heard.

Re:Judicial control is what was missing

[swillden]

The Judiciaries job is not to *trust* the military to do the right thing, its to *check* they are doing the right thing

The justice system is supposed to be blind and not "trust" anyone. I don't think the FISA court was set up to deal with the Constitutionality of the law itself, but to grant or deny warrants.

The fundamental basis for the FISA court's decisionmaking on the warrants is constitutionality, plus, of course, USC 50 and the established precedents. The problem isn't that that the FISA court (FISC) can't evaluate the constitutionality of the law, it can, but that FISA hearings are ex parte, so there's no one to argue the view that the law is unconstitutional.

Another serious, though subtle, problem with the FISC structure is that there is effectively no appellate review... the court has no oversight. There is an appellate court over FISC, but there is no one to force it to be used. If the government gets the answer they want from the court, fine, they go ahead. If they don't, it's purely at the government's discretion whether they want to appeal, and risk having a precedent set that goes against them if the higher court upholds the original ruling or whether they'd rather just tweak their request a bit and try again.

This creates a situation where the government can push the boundaries of what FISC will allow with no concern that they might get slapped down in any definitive way. As it turns out, based on the numbers published, the court doesn't say "no" very often anyway, and of course there is no appeals process for approved warrants.

The bottom line is that our courts are adversarial for a reason, and since the FISA procedures omit that very important element they're strongly biased in favor of whatever view the government chooses to argue -- because that's the only view that is argued.

Re:Judicial control is what was missing

[kermidge]

from Wikipedia article "Central Intelligence Agency":
In September 1947, the National Security Act of 1947 established both the National Security Council and the Central Intelligence Agency.

It is a separate agency. Period. That CIA and DOD cooperate on some matters (transportation, signals, paramilitary training and action, for some examples) is no wise equivalent to control. Each body is quite protective of its own space and prerogatives. Most DCI have been civilian, often with little or even no military experience.

See also the short http://en.wikipedia.org/wiki/National_Security_Act_of_1947
See also https://www.cia.gov/kids-page/6-12th-grade/operation-history/history-of-the-cia.html
While it has "kids" in the title it nonetheless gives a concise accounting of formation and scope of CIA.

In sum: CIA ain't run by the military.

From the Wikipedia article on "National Security Agency":
The National Security Agency (NSA) is the central producer and manager of signals intelligence for the United States, operating under the jurisdiction of the Department of Defense.

So, one no, one yes.

Re:Judicial control is what was missing

[fnj]

We need a separate court that is secret like FISA

No Thank You. We do not. And we should not tolerate one. No secret courts. No star chambers. No secret surveillance. No government operations of any kind that are secret except legitimate military secrets in time of legitimate war.

No Shadow Government Damn It.

Re:Judicial control is what was missing

[kilfarsnar]

Anyways I dont see how his claim that the military will always expand its power holds water. The military is at the mercy of the executive branch with regards to policy and the legislative branch with regards to funding.

Yeah, I'd say those with power always (or at least often) try to expand their power. It's not a military thing, it's a power thing.

Re:Judicial control is what was missing

[gl4ss]

look man, we all know why "cia isn't military" on paper. it's the same reason why u2 spyflights were done by "civilian" pilots. you know it's bullshit, the money comes from the same budgets and the same guy can order both to do whatever he wants.

you could quite easily argue that CIA is the first step on the line of semantics bullshit that leads straight to gitmo. it's just about bending the rules. "we're not military! we just happen to do everything a military does, but since military isn't allowed to do this we do it. sweeeet?"

Not exactly a secret anymore

[ArcherB]

I think the fact that this has been made public and that the government itself is no longer denying this negates any attempt to call this "state secrets".

However, there will be cases that deal with actual state secrets. For those, we need a court set up to deal with that sort of thing, not just a court to approve warrants, but a court to handle cases brought up by whistle blowers that evaluate the Constitutionality of cases like this.

Re:Not exactly a secret anymore

[FriendlyLurker]

We have Snowden to thank for this change in attitude. Public sentiment is everything. And yet, the second part of his interview which addresses pretty much every criticism laid on him (before it was made) never made /. news for nerds, (it got modded down to oblivion on the firehose AFAIK), despite Snowdens story being highly relevant news for nerds...

Re:Not exactly a secret anymore

[Anonymous Coward]

(it got modded down to oblivion on the firehose AFAIK)

No surprise there, anyone who watches Snowden in that two part video interview is pretty much immunized against the vast majority of propaganda being slung about to try and discredit him. Slashdot has plenty of shill accounts standing by to target anything that interferes with the propaganda machines message. Paging Cold Fjord in 3, 2,...

Re:Not exactly a secret anymore

[Lehk228]

Purges are an excellent idea, comrade.

Re:Not exactly a secret anymore

[interkin3tic]

However, there will be cases that deal with actual state secrets.

I'm honestly having a hard time picturing what those cases would be. I could see the need for secret courts if one assumes that the very existence of a spy program to listen to foreign terrorists' cell phone calls is a secret. But that's idiotic. The terrorists know we're trying to spy on them. We know that they know. Even before Snowden or Binney. Al Quaeda has been acting covertely since before we actually WERE listening. They weren't holding public meetings in Sudan to discuss the best ways to attack the US.

Regular courts deal with things that need to be kept secret: the names and addresses of witnesses against criminals isn't published in a "People with a price on their heads weekly" magazine. Regular non-secret courts can handle secrets. They won't be outing informants.

Lastly, the pointless secrecy is massively counterproductive. Leaks are going to happen if you make it a moral obligation for someone to report it as you do with secret courts and clearly perverting justice. It seems clear to me that the leaks are going to be more dangerous than you'd have with non-secret courts. The Manning leak had, if I recall, actual sensitive information that regular courts would have likely kept secret, such as informant identities.

Seven Expectations

[some old guy]

1. Trial will be drawn out for six months to two years by motions, security considerations, etc.
2. Regardless of rulings, appeals will take a further two to five years.
3. Meanwhile, the government will continue to do as it damned well pleases.
4. Through it all, 99% of the public will pay more attention to American Idol or Nascar.
5. Poor ~pj at Groklaw will be driven to distraction by the huge briefs and exhibits expected to be filed.
6. Major media will spin everything pro-government.
7. At the end of it all, regardless of legal gymnastics, there will be no practical difference.

Re:Seven Expectations

[bill_mcgonigle]

Don't worry - they'll start the next illegal program now so that when this one gets struck down, its replacement will be humming along nicely.

'Soverign immunity' is what makes this form of government unjust in the first place. To hear the government lawyers use it as a defense claim is to hear them say, "but your honor, we're entitled to injustice." It's enough to make one's inner Bastiat's skin crawl.

Re:Seven Expectations

[pla]

You didn't go far enough with #7. Not just no practical difference, we'll have no difference at all, because the executive branch will simply ignore the ruling, the same way Holder regularly does, and Reno and Ashcroft did before him (DOJ != Judiciary) ; The same way the FDA does when it doesn't "like" court orders to make certain drugs available without discrimination. The same way the entire intelligence community has done for years (*cough* guns to contras funded by running the international drug trade and all pardoned by former CIA directer Bush-the-Elder *cough*).

And we worry about some phone call tracking? We have an outright rogue government, not even pretending to give a shit about its citizens anymore, and we really care about the latest distraction over whether Snowden counts as a hero or a traitor?

State secret != Domestic

[mrjatsun]

There used to be a good separation between domestic (FBI) and international (CIA, NSA, ...) data gathering (for a good reason). In theory, any collection of data, active spying, etc. on US citizens cannot be done under a national security, restricted access setting. Nor could any of the assets used to to collect data (say for an investigation) on one or more US citizen be classified. There are exceptions for US citizens co-operating with a foreign government of course. And data can be withheld during an active investigation, etc, etc. For a long time classified assets were not allowed to be used for domestic investigations.

This separation is now gone of course. There also seems to be an attitude that if the data is collected, and not looked at, its ok as long as there check and balances to ensure that the data is not being looked at. Obviously, in a democracy, a government cannot police itself with no external visibility. It's a fundamental breakdown of the principles of a democracy. Hopefully this will be brought up when this case makes its way to the supreme court.

What is being done is so obviously wrong. It will be an interesting case to determine if the Supreme Court is representing the country or representing the government.

Official Secrets Act

[Frankie70]

Sir Humphrey: The Official Secrets Act isn't to protect secrets - it's to protect officials.

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James Hacker: I occasionally have confidential press briefings, but I have never leaked.

Bernard Woolley: Oh, that's another of those irregular verbs, isn't it? I give confidential press briefings; you leak; he's been charged under Section 2a of the Official Secrets Act.

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