Secret Trials, Secret Laws

Spencer Ackerman reports on a secret USA-PATRIOT Act:

You think you understand how the Patriot Act allows the government to spy on its citizens. Sen. Ron Wyden says it’s worse than you know.

Congress is set to reauthorize three controversial provisions of the surveillance law as early as Thursday. Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged. But one prominent Patriot-watcher asserts that the secret interpretation empowers the government to deploy ”dragnets” for massive amounts of information on private citizens; the government portrays its data-collection efforts much differently.

Is the secret interpretation of this law justified by the law’s text? It could be, but if it is, we may never know. Is it consistent with the rule of law? Absolutely not.

The rule of law entails publicly known laws and procedures. To proceed on a secret interpretation of the law — in a secret court, no less — is to abandon all pretext that the people are sovereign, that they consent to be governed, and that they can hold the government accountable.

Seems like a perfect opportunity for a whistleblower. Anyone wanna step up?

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46 thoughts on “Secret Trials, Secret Laws

  1. Probably not. It didn’t work out grand for Mark Klein.

    For the record, I’m not surprised, in fact it’s nice to get some confirmation that I may be correct in my surmises about how the system is actually designed. I wrote a ton about the NSA program when it was first revealed. The nature of the technology is such that “information dragnet” is an inherent necessary step.

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    • I don’t want you to think I’m stalking you, but this forum was a better place to tell (one of) my Milgram type stories. I am extremely reluctant to possibly reveal my identity by posting this, but in fact over a decade ago I was an owner of the /only/ ISP to fight the federal government over installation of a Carnivore system. Naturally we lost, the Fed’s have unlimited funds and sticks at their disposal. And lest the die-hard librul democrats here scream Bush!, in fact this was all under the Clinton administration.

      Re: my Milgram experience. Having stood up to far worse previously (earlier Milgrams) the cost to me personally (to the tune of 7 figures) and the opprobrium of my business partners was something I could stand, as I can stand the slings and arrows wending my way in the changing minds thread. My issue isn’t that I can’t stand the aspersions, but that it irritates me when they are (to me) unfounded. I haven’t done a word count ala BlaiseP, but I’ve read and reread my posts to visually pattern match to find my “contumacious” language. Sorry Blaise that I am so resistant to authority. So sue me – you won’t be the first and likely won’t be the last.

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      • Ah. You were a client of Hogan & Hartson? You don’t have to answer that. Our contentious thread elsewhere aside, I’d like to buy you a beer. You and Joseph Nacchio, should he ever get out of the clink.

        You have my sympathies; the Carnivore system, its predecessor, and its successor represent 15+ years of the FBI and the federal government (under multiple administrations) trying to screw civil liberties in spite of repeated attempts to stop them. Good on you for fighting that fight.

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    • Do you think Thomas Jefferson would have tolerated the USA Patriot Act? Would George Washington have submitted to a full body pat-down or nude-imagery scatter scan? It’s not just about refusing to dangle one’s dongle for the delight of poorly-paid TSA workers, DD.

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            • DD, I think a libertarian would argue such tyranny by Leviathan was almost immediate, that the Constitution was under threat from the drop of the hat.

              The Federalist Party went on to disappear within only a few years, don’t tread on me, amen. The Sedition Act expired in 1801, and although never tested in the Supreme Court, most scholars believe it would not have survived review.

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  2. FWIW The Leahy -Paul Amendment failed in the senate it lost 72-23
    Of the 23 supporting the amendment 18 were D’s, 1 I ( Bernie Sanders) and 4 R’s

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  3. *Warning* I have came up, w/ what some might call a crazy idea!

    The shame of the election last November, was that the 1 Senator who voted no, on the original Patriot Act, was voted out of office. Sen. Russ Feingold, say what you will about him, but Feingold was true a civil libertarian.
    This is what kills me about the Tea Party. When they 1st appeared, I ask were the hell were they when the first law enacted that really infringed on freedom & violates the Constitution since it was written had been law since 2002. Health Care? Shut up, it needs some work! And yes, I know there is 2 sects of the Tea Party. The Paul & the Palin.
    This made me think of Kain’s article’s ‘nostalgia & freedom’ & ‘Redistribution &the State’. The great analogy he gave on how liberals & libertarians were really cousins. Got me think about this. First thing we need is to shack up the status-quo! I am a firm believer in that.

    My “dream” 2012 Presidential ticket? Well here we go! I want a Gary Johnson & Russ Feingold to run as 3rd party independents in the general. As of now, I am supporting Johnson in the GOP primary, but it is hard to watch when the media treats him like Dennis Kucinich. Also, I am liberal/moderate on economics & taxes, so I don’t support him on a lot of those issues. But person freedom is my #1 concern. Without it we are no longer a Republic. My moderate/liberal economy side of me comes from being the child of 2, of the school districts best High School & Jr. High teachers.
    (FYI: My Pops voted Republican for President since he was 21. He was also never a member of any teachers union for 33 years.) But now he is upset w/ the GOP & is talking about voting for Obama! Now that does depend on the candidate, but he didn’t like any of them until I introduced him to Gov. Johnson.
    Now you might be at your computer, screaming what an idiot I am. What’s my reasoning for thinking these 2 men on the same ticket, could win a 3 way race. When I think of Johnson & Feingold, I see men of integrity & men who know & love the Constitution. Neither has a big ego & they will work w/ members of the other party, to do what is right for America. Plus they could beat Obama or whoever the GOP candidate is. I know as many liberals as I do conservatives who are pissed at Obama. If I am wrong tell me how real change, can be put in Washington, DC.

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  4. Obama has signed the Patriot Act via auto pen. Apparently he can’t be bothered to actually sign a bill as the constitution requires. Ironic for such a controversial bill or maybe not considering how he can’t obey the War Powers Act either.

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      • I disagree. The Constitution says the pres has to sign the bill not have his signature affixed. Surely the framers meant that the Pres would physically sign the bill. I’m confident Burt can come up with something better than his reductio ad absurdum argument. Certainly a Harvard law grad and con law prof can be expected to obey the law?

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        • I thought I did:

          What matters is that the President review the bill which Congress passes and indicate his approval or disapproval of it in some permanent, recordable sort of way which other people can later objectively verify to determine if bill “X” was or was not thus approved into law.

          But if that’s not good enough for you, well, I may as well stick with the first argument, which at least had the benefit of being moderately amusing.

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          • Burt:

            Funny, my copy of the US Constitution doesn’t say that, “the President review the bill which Congress passes and indicate his approval or disapproval of it in some permanent, recordable sort of way which other people can later objectively verify to determine if bill “X” was or was not thus approved into law.” My copy say something about signing the bill. I thought that the letter of the law actually meant something, silly me.

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            • See, mine doesn’t say anything about signing statements either. So, I assume for consistency sakes you were all over the last 8 or so executives for their use of them, right? Or is it just the letter that follows the executive’s name that makes this auto-pen so detestable?

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              • Mark:

                First, the subject here is the use of the auto pen not singing statements but if you want to take that subject up, fine.

                As one of my law profs said, it depends. Is the pres who is using the singing statement doing so to blatantly undermine or ignore the law or is he using it to clarify a vague point in the law to his favor? I see the former as not acceptable but the latter is okay. If the Pres is seeking to undermine or ignore the law then someone should take him to court. In cases of the latter, if the congress doesn’t like it then the congress should not be as vague as often as they are.

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                • I guess I’m trying to figure out what makes the windmill of the autopen so worthy of tilting at while the overuse of signing statements, which the executive has historically used in an attempt to direct federal agencies as to which parts of these bills should be implemented and how, has you shrugging your shoulders.

                  Trust me, I understand the power of binary thinking. I’m just questioning whether your concern about Obama’s autopen is not a product of such thinking.

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                    • True. I have developed an overly sensitive pet peeve towards partisans who can find the most trivial things to be threats to the Republic while finding themselves able to muster only yawning nonchalance towards other threats to the Republic depending on who is doing the threatening.

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                    • Mark:

                      Funny thing is that I didn’t say that only Dems were bad for using singing statements. I guess if you want to read it that way then fine but clearly your reading comprehension skills need some work.

                      Why exactly are you so desperately trying to change the subject from what Barry did? I guess if the auto pen can sign laws for Barry then his kids can or even you and I could. What happened to folks obeying the letter of the law?

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                    • First off, I was comparing what seems to be your sense of outrage about this with what I’m guessing was yawning indifference to Bush’s use of signing statements, so it may be your reading comprehension that could use some polishing.

                      And I’m betting that if Barry’s kids can sign laws into effect or you and I can, we also have the ability to launch nukes, right? Same safeguards and all.

                      To be truthful, I just like tweaking the noses of people who seem to be selectively outraged by the actions of the “other” side, when their side does all the same things. It distracts us from actually solving problems. But, I do understand the tendency.

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        • Well, the only outrage you seemed to exhibit was the fact that the President “auto-signed” it. If that made me assume you thought the law was important enough to actually have the man’s real hand sign in real ink with a real pen so that he could successfully convey the importance, and by extension, necessity, of this bill to you, I’m sorry.

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  5. I think people don’t know what the term “rule of law” actual means, but if they did, they’d doubtlessly agree that rule of law is a good thing and that the last two (at least!) Presidents have put shat all over it.

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        • Ain’t that the rub? I certainly lean to the left but am so disillusioned by the continuation of the policies of the past administration, and the defense of it by people who spent 2001-2009 saying we lived in a dictatorship.

          As long as the success of *my* team is more important than the general success of *our* country, or the ability to analyze what might actually work, the spiral will continue. Especially if the success of *my* team is defined by obstructing and defeating any proposal of the other team, no matter how useful or utilitarian, simply to deny them credit for anything that might work.

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