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back to article NSA surveillance and the reality-based community

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 …

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This is the crunch we've been waiting for

So now we finally have the distinction that separates a police state dictatorship from a democracy out in the open. What this comes down to is the ultimate question of government accountability to its citizens. In a democracy, the government is accountable. In a dictatorship, it is not. Our freedoms, and those of our children, such as they are, will ultimately ride on the decisions that will be made here.

That the Bush/Cheney administration's motives are aimed at creating a dictatorship is self-evident here. This is what they want, and it's what they're going to do everything they can to get, plain and simple. Now the judiciary themselves must decide, is the government to be accountable or not? If they decide against the government, where will the police stand? The FBI? The military? Do these organisations serve the President or the people?

If the judiciary either rule in favour of the government, or are disempowered to rule against it by force of law, then that is the true and final end of freedom. On that day, civilisation as we know it dies, to be replaced by a horror that even George Orwell, in his worst nightmares, could not possibly have imagined.

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Precedent in the making?

If the court does decide to reject the State Secrets privlege argument in this case, would that be the first time ever? As far as I know, US courts have always accepted that the State Secrets privlege is an automatic Get Out of Court Free card for the government.

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Anonymous Coward

There is no disputed item

The EFF man has gone on oath saying the Government is spying domestically without a FISC warrant. The Government has *not* gone on oath to dispute that. Infact they've notably refused to go on oath.

So it's not even a disputed item.

They have said it everywhere else, even Bush has said it publicly. So the act of disputing it on oath, would not require a state secret to be revealed.

Simple boolean logic:

!(warrantless AND spying) = !warrantless OR !spying

So the government doesn't need to reveal whether they are spying or not to kill this lawsuit, they only need to state that they were EITHER NOT SPYING or ONLY SPYING WITH A FISA WARRANT.

So my view is this is an easy win for the EFF. But then IANAL.

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Anonymous Coward

Democracy...

For example, in some european countries (hungary) the old surveilance network was never removed after the fall of the communism, just got upgraded as technology advanced. This means a 100% interception of all forms of communications including internet traffic. The law only allows court authorized wiretraps, but since the government is officially not accountable (and legally can only be changed every 4th year) nobody cares to follow the law, not even the country's police force. Everybody knows that politicians lie, they even admit this, so most people quit listening to them, but they still didn't try to change the system hard enough. (the country had one failed revolution in the past year and it didn't even make it into the headlines in the west, so un help is very unlikely) And after all this, the country is still treated as a working democracy both by western countries (usa, uk) and eastern ones too (russia, china), despite the current prime minister's open admission that he lied to win, he is still allowed to lead the country and his national socialist party.

So, imho unlike hungarians the people of the usa still have the chance to get out of all these troubles by electing a president who does his job better.

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Schroedinger's Lawsuit?

So the program neither exists nor doesn't exist, but is in an indeterminate state? Open the box!

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Uncertainty

"If it hasn't made you dizzy, you obviously haven't understood it" - Niels Bohr

Oh hang on, that's quantum physics.

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Anonymous Coward

@ Nano nano

I guess it is called "legal limbo". You know, like the one Maher Arar was told he was in, before they had him tortured in some Syrian hole for nearly a year.

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The solution

The lesson that we should be taking from all of this is that we NEED to make sure that we get a law passed clearly stating that NO state secret is beyond judicial review.

The judges need to have full access to the secret info. If, after a request by a party in a lawsuit, the judge determines that the info is relevant to the case, the judge needs to have the power to introduce that info as evidence. Depending on the judge's decision, the secret info could remain classified and withheld, introduced as evidence under a confidentiality agreement, or declassified altogether.

The attorneys on both sides of the argument would get their chance to make their case. The judge will have access to the classified information and the legal arguments from both sides, and can then make an informed decision.

We have gotten by for so long under the current system only because no former President had the audacity to abuse the state secrets privilege to extent that the Bush administration has done. However, the potential for wide scale abuse of power has always been there.

It's time for a change.

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Brighter Orange Futures

"To wit, the essence of the Catch-22: the public statement by the President revealing the existence of the program is sufficiently trustworthy to establish the existence of the program for purposes of claiming the state secrets privilege, but, existing in some quantum legal state of being either A or B at the same time, is simultaneously not sufficiently trustworthy to establish standing for the plaintiffs - because, after all, he could be lying."

The Truth then is just always Testing for Lies/Tales Told rather than Thoughts Imagined?

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