Comment by edot

It's not justified and it can never be. Keeping information secret is only justified if releasing it would put a person in serious danger or compromise a police/military operation. And even then it must be balanced against the public interest in transparency, strictly time limited and narrow scoped (no blacking out whole documents).

I don't see how releasing an interpretation of a law could ever compromise law enforcement. Or actually I know how, it's because it would prove the way they do mass surveillance is illegal.

The problem is modern America doesn't see it that way. Any time the government does something evil they just say it's for "national security" and no one questions them. It's like a Winter Soldier password that makes courts go blank and say yes to anything.

Once you have secret courts and secret warrants, secret interpretation of the law seems like a natural, if not necessary, progression.

There are whole laws that are classified and cannot be discussed in open court. Ignorance of the law is no defense when you are charged with violating a law and that’s still true in the USA even if the law is classified and you are not authorized to know what it says.

Check out Gilmore v Gonzales for an example: https://en.wikipedia.org/wiki/Gilmore_v._Gonzales

Really what it is is they had a lawyer say, "We can justify massive spying on citizens via [long long list of arguments and precedents]", the security apparatus would like to keep the veneer of legality that provides and knows if what they were doing was known there would be massive backlash and the law would be changed to make it more clearly illegal so they keep that interpretation secret. Basically going on the logic that they don't have to tell Congress or the Courts how they screwed up the 4th Amendment and it's not their job to fix it.

No one is giving the real answer to this question which is that these laws touch on the legality of capabilities the US does not want to acknowledge it has, and so it won't. Secret information in the US is like glitter - if you touch it, it spreads to you too.

It's not just "here's this law about spying in the abstract," which can be talked about in the open; it's "we're using the MIND READER 5000 under Title XVII powers delegated by the President to the Mind Reading Organization to conduct mind reading on persons X, Y, and Z." The legal briefings and rulings on the facts will by necessity reveal the nature of the technology or technique in question, and so, they are classified. If I recall correctly it was a big deal for the ACLU to get a lawyer a security clearance so they could interact with these courts, but I could be misremembering.

You’re government agency, and you ask your lawyers about how the law operates given a particular set of circumstances.

In response, the lawyers provide you with advice about how they think the law applies to this situation, and what findings they think a court would make given the evidence etc available.

Information subject to attorney-client privilege (as this information would be) is exempt from release under FOIA anyway. Dropping a security classification on top adds protections against unauthorised release by insiders.

Sometimes there are good reasons for this, such as to protect particular technical capabilities that are easily circumvented if adversaries know that they exist, or to protect human sources who might end up dead if found out. Other times, there are no good reasons to do this but without knowing all the circumstances it’s impossible to tell either way.

Read it as classified misinterpretation of laws, so that they can do illegal things and claim this loophole when caught.

Usa has constitution and its government more or less side steps it in many things. Might as well have no constitution. Usa is a jungle for practical intends and purposes compared to europe or any functional democracy. This is the problem with allowing interpretation of law rather than taking law as it is written. Someone somewhere can interpret it in completely twisted way and throw away the spirit of the law.

A good faith answer to the question; classification hinges on damage done to the United States if it is released. So for example, a law might constraint or enforce the usage of a capability against an enemy, and this, of course would hang on some sort of spectrum also probably defined in law or in an agency interpretation. The agency interpretation is also probably classified and so as you start applying that spectrum, you enter gray areas and niches, and extremes, and so you have to ask a lawyer to disambiguate. And so this lawyer's interpretation is now the fulcrum on which employment of classified US capabilities is based. So therefore, teleologically this lawyer's interpretation has to be classified because it all goes back to whether public knowledge of this capability will damage the United States interest. if you know what the lawyer's interpretation is then you know the spectrum if you know the spectrum then you know the capability then you can damage the United States.

Not what you’re asking for, but see https://en.wikipedia.org/wiki/Secret_law#Secret_law_in_the_U....

Kid, to keep you safe I need to keep a secret. Mommy loves you, go back to sleep!

different countries have different platforms or mechanisms where interpretations of law are discussed, in Belgium for example there are "rondzendbrieven" by which say judges discuss how to collectively misinterpret the law.

from a US perspective, isn't this diametrically opposed to the concept of "void for vagueness"? : the moment the interpretation of ostensibly non-vague law is under discussion by professionals is the moment said law is invalidated.

I guess when you have secret courts, it's something that starts to make sense.

I still can't understand how a government can work with some courts where everything is secret. That's something almost literally lifted out of The Process, but the Kafka book is an allegory for a kind of madness, not something that works.

Basically any time a corrupt regime is hiding something it's either bad or embarrassing--usually both.

> I don't really understand how it can be in any way justified in any country that's even pretending to be a democracy?

You're not misunderstanding. It really is against everything most Americans think their government is allowed to do. To your question, the 'classified' part is what you think it is: secret. 'Interpretation' is the tricky part.

Unfortunately, laws and regulations aren't exactly clear and over time situations change so one important role of the court system is interpreting how, when and whether the words in a law apply in a specific context. Courts at different levels do this all the time as cases with unique situations arise. Sometimes it's as simple as deciding if a horse counts as a vehicle in a state law which says "no vehicles on this type of road." Assuming that ruling survives appeals without being overturned, the judge will have justified the basis and, hopefully, some clear reasoning for why a horse does or doesn't count as a vehicle. That judge's ruling then becomes part of the "precedent" (aka 'body of case law') attached to that law. In effect, such precedents become part of the law since they can clarify if and how the law applies in certain situations.

So whether some action is or isn't against a law can't solely be determined by just reading the law. You have to do some interpretation, which includes looking up any relevant precedents and weighing them. A single prior ruling from one local municipal court has low weight. The main job of the Supreme Court is resolving conflicting precedents set by lower courts, so a SCOTUS ruling has a lot of weight and multiple SCOTUS rulings over time, each successively refining and narrowing (or occasionally reversing) their prior interpretations, carries maximum weight. All of this happens in the open and, in the long run, I think SCOTUS manages to eventually get most things, if not perfect, pretty close to right.

Hence, the answer to "Is this legal" can be a bit tricky when the law is new or there aren't decades of court precedents. So lawyers have to do research and assess how a court would probably rule on a given situation. That's called "a formal legal opinion" and it's provided in writing, usually including research and justifications, like references to existing case law, as well as legal reasoning supporting the opinion. Anyone can hire a lawyer to research and assess if X action violates Y law (but if you get sued for relying on the lawyer's opinion, they won't be on the hook - you will). It's called an opinion because that's really all it is.

When a govt agency wants to know if they're allowed to do X under Y law, they ask the justice dept to assess and provide a formal opinion just like any company might ask their corporate counsel to. This is often routine but can be very consequential. Where this can go horribly wrong is when these govt lawyer opinions are classified top secret. For example, we all know torturing prisoners is against U.S. law, so in the 2000s the military and CIA asked the Bush Justice Dept to provide a secret legal opinion on whether certain 'enhanced interrogation' techniques met the legal definition of torture. And they got what they wanted, a written legal opinion that waterboarding isn't torture. The Obama Justice Dept issued a secret legal opinion that droning a teenaged American citizen in Somalia, who posed no exigent threat (but had the wrong Dad), did not meet the legal definition of murder. After it happened and was no longer secret, Senator Rand Paul was the only politician willing to stand on the floor of the senate and say killing a U.S. citizen without any legal due process was first degree murder authorized by a sitting U.S. President. While it's true his Dad was sort-of a terrorist (the real terrorists were happy to use him for propaganda but being an American, they never really trusted him). The dad was arguably an enemy combatant and maybe you could make a case he was an "exigent threat", but the kid wasn't and didn't. Reasonable people can differ on acceptable levels of 'collateral damage' (aka killing foreign innocents) but U.S. law is clear, non-combatant American citizens who aren't a clear and immediate threat are a hard, bright line. They get a judge and jury, not a drone.

Senator Ron Wyden is on the Senate intelligence committee, so he gets oversight on what intelligence agencies are doing and sees the secret legal opinions they're relying on. And he's saying the U.S. govt is relying on a secret legal opinion to do something in secret which is obviously, very, VERY wrong - but he's forbidden from telling us what it is because they made it top secret. For context, Ron Wyden has been a Senator and on the intelligence committee for a while and is pretty much a straight-shooter, not known for hyperbole or politically-motivated grandstanding. He'll call out his own party when he feels they're seriously wrong and he gets no benefit from making a big deal over this. His own party isn't supporting him and wishes he'd shut up about it. Yet for the last six months he's been signaling "DANGER, DANGER" in interviews, speeches and in writing over and over again - so I'm going to assume whatever it is is way beyond the Snowden revelations and probably in the neighborhood of the worst things we can possibly imagine.

The perverse thing is that the pretense for keeping it secret is to prevent 'foreign adversary governments' from knowing what it is, but it's clearly about domestic spying on U.S. citizens - and Russia and China probably already know exactly what it is (and are like, "Hmph amateurs, we've been doing that to our citizens years").

lol “we don’t feel like following the law so we just picked some fresh dog poop and yelled about bad things that were unrelated and then did whatever we want and invented these funny little games with paper thin jokes everyone is going to pretend is valid so we could do whatever we wanted to anyway lol”.

If they could justify it, it wouldn’t be classified.

To add to this, it's completely dumb to think that any party is necessarily the same over decades. Look around. Most of what you see today is reactionary. Hold on to party views from 10 or 50 years ago, and you won't get elected today. Both parties are in turmoil in terms of public support.

Historical "bipartisan did X" means nothing today. The time is always right now to define what a future party should be. It's a great time to destroy the old and reimagine the new.

> Make it a priority in primaries.

lol what primaries?

Please stop with the security/privacy nihilism, https://news.ycombinator.com/item?id=27897975.

    You can't say this. We have no idea. There is nothing about (s/the law of physics/US history) that pushes (s/cancer cure/the right to privacy) a long time away.

Don't mind me, just repurposing one of your old comments to save time.

That's Wyden as Wyden, not because he is a Democrat. Some of the strongest proponents of these intelligence authorities, and in many cases the literal authors of bills expanding these powers, have been leading Democrats e.g. Feinstein.

There is no credible version of history where Democrats as a party are not enthusiastic supporters of these surveillance powers. They've been actively complicit the entire time.

Wyden is an aberration. He (unfortunately) does not represent the party on these issues.

The one raising the point. Apparently standing alone amongst otherwise bipartisan support of spying on Americans.

In American politics it seems like all the good ones side democrat, but it's few enough that most of the democrat party still isn't good ones.

What you are describing would be straight up treason. The fact that treason charges are almost never laid upon anyone shows it is a farce.

Exactly my instinct, as well.

Nah, mostly republicans

You know what I love? We have spent over 100 years going back and forth on party politics. It has done nothing to move the bar on justice. The democrats silently allow the same things under the radar while the republicans do things out in the open. Its the carrot and the stick approach. Populism isn't working. We need to focus on systemic change. Both parties are filled with institutionalists that will do nothing to stop the real abuses because they gain significantly by keeping things they way they are..

It literally is both sides though. Congress, courts, and executive all love spying, have for decades. Do you have evidence that the Democrats have tried to curtail anything?

It's all one side as far as I'm concerned and always has been.