Feeds

NSA surveillance and the reality-based community

Cheney to awake as oversized roach...err..wait

Next gen security for virtualised datacentres

If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn't. And contrary wise, what is, it wouldn't be. And what it wouldn't be, it would. You see? - Alice in Wonderland

I have to confess, the oral arguments in the Ninth Circuit Court of Appeals in San Francisco yesterday in a courtroom that poured into two overflow areas, were, in all their strangeness, at times difficult to follow, even for a practicing lawyer.

The magnificent marble hallways ideally would invite an equally sublime level of discourse, but the sad, tortured logic of the Cheney administration swirled again through the hallowed chambers of the judicial branch, spinning nowhere. The court confronted two cases brought against the administration for its massive, supra-legal domestic surveillance program, the one that may, or may not, be spying on us, and that may, or may not, even exist.

To acknowledge its mere existence - though the President may, or may not, have lied in acknowledging its existence, to throw critics and assorted other troublemakers off the scent - the government argued yesterday, in both cases, would be itself a violation of what is known as the "state secrets" privilege, and the attorneys for the government in both cases argued strenuously that the privilege is for all intents and purposes an absolute bar to litigation about those very programs - er - alleged programs.

The audacious circularity of the arguments by the executive branch brought out the sardonic wit of the judges, particularly Harry Pregerson, who repeatedly probed the government's attorneys about what oversight role, if any, would be left for the judicial branch. Pregerson noted almost wistfully, about 3,000 warrant requests that made it to the official court for surveillance activities, FISA, in 2005 and only one of those was denied, and that only in part. As Judge Margaret McKeown observed on more than one occasion, the government's argument boiled down to "trust us".

"The bottom line is, that once the executive declares that it's a state secret, that's the end of it - the king can do no wrong," Pregerson said.

Garre tried repeatedly to claim that the judicial branch should extend to the executive branch the "utmost deference" when confronted with government claims of state secrets. "Utmost deference. What does that mean? Just bow to it?" Judge Pregerson then asked Garre point blank if judges would be nothing more than a rubber stamp for executive branch state secret privilege claims.

Sentence first - verdict afterwards

The first oral arguments concerned the class action lawsuit, Hepting v. AT&T, filed by the Electronic Frontier Foundation (EFF) against the telecommunications giant for participating in the controversial secret surveillance program with the NSA. Room 641A at 611 Folsom St. in San Francisco, according to the EFF, functions as a massive data mining operation by the NSA, where splitters divert fiber optic signals into a secure NSA listening room. Although the administration has claimed that the surveillance program only targets foreign subjects, the room, if it is as alleged, is clearly capable of much, much more.

The argument surrounds a foundational element of the law - namely, whether plaintiffs under alleged surveillance even have what is called "standing" to sue for that very surveillance. Standing requires a prima facie showing of harm to an individual plaintiff. The problem, of course, is that the surveillance is secret, and the instant that a plaintiff alleges he or she has been illegally surveilled, the executive branch claims the "state secrets" privilege. This is a classic Catch-22, and it has so far made it impossible for Americans to challenge clandestine government action against its own citizens.

The essential guide to IT transformation

More from The Register

next story
Munich considers dumping Linux for ... GULP ... Windows!
Give a penguinista a hug, the Outlook's not good for open source's poster child
UK fuzz want PINCODES on ALL mobile phones
Met Police calls for mandatory passwords on all new mobes
e-Borders fiasco: Brits stung for £224m after US IT giant sues UK govt
Defeat to Raytheon branded 'catastrophic result'
EU justice chief blasts Google on 'right to be forgotten'
Don't pretend it's a freedom of speech issue – interim commish
Yes, but what are your plans if a DRAGON attacks?
Local UK gov outs most ridiculous FoI requests...
Detroit losing MILLIONS because it buys CHEAP BATTERIES – report
Man at hardware store was right: name brands DO last longer
Snowden on NSA's MonsterMind TERROR: It may trigger cyberwar
Plus: Syria's internet going down? That was a US cock-up
UK government accused of hiding TRUTH about Universal Credit fiasco
'Reset rating keeps secrets on one-dole-to-rule-them-all plan', say MPs
Caught red-handed: UK cops, PCSOs, specials behaving badly… on social media
No Mr Fuzz, don't ask a crime victim to be your pal on Facebook
prev story

Whitepapers

5 things you didn’t know about cloud backup
IT departments are embracing cloud backup, but there’s a lot you need to know before choosing a service provider. Learn all the critical things you need to know.
Implementing global e-invoicing with guaranteed legal certainty
Explaining the role local tax compliance plays in successful supply chain management and e-business and how leading global brands are addressing this.
Build a business case: developing custom apps
Learn how to maximize the value of custom applications by accelerating and simplifying their development.
Rethinking backup and recovery in the modern data center
Combining intelligence, operational analytics, and automation to enable efficient, data-driven IT organizations using the HP ABR approach.
Next gen security for virtualised datacentres
Legacy security solutions are inefficient due to the architectural differences between physical and virtual environments.