Feeds

NSA surveillance and the reality-based community

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

Providing a secure and efficient Helpdesk

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.

Beginner's guide to SSL certificates

More from The Register

next story
Doctor Who's Flatline: Cool monsters, yes, but utterly limp subplots
We know what the Doctor does, stop going on about it already
Facebook, Apple: LADIES! Why not FREEZE your EGGS? It's on the company!
No biological clockwatching when you work in Silicon Valley
'Cowardly, venomous trolls' threatened with TWO-YEAR sentences for menacing posts
UK government: 'Taking a stand against a baying cyber-mob'
Happiness economics is bollocks. Oh, UK.gov just adopted it? Er ...
Opportunity doesn't knock; it costs us instead
The 'fun-nification' of computer education – good idea?
Compulsory code schools, luvvies love it, but what about Maths and Physics?
Ex-US Navy fighter pilot MIT prof: Drones beat humans - I should know
'Missy' Cummings on UAVs, smartcars and dying from boredom
Sysadmin with EBOLA? Gartner's issued advice to debug your biz
Start hoarding cleaning supplies, analyst firm says, and assume your team will scatter
Don't bother telling people if you lose their data, say Euro bods
You read that right – with the proviso that it's encrypted
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Why cloud backup?
Combining the latest advancements in disk-based backup with secure, integrated, cloud technologies offer organizations fast and assured recovery of their critical enterprise data.
Win a year’s supply of chocolate
There is no techie angle to this competition so we're not going to pretend there is, but everyone loves chocolate so who cares.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.