Dr. Rahinah Ibrahim won her case against the DHS for erroneously putting her on the no-fly list (see No Fly List on Trial for background). The case was characterized by plausible allegations of various government shenanigans designed to keep Dr. Ibrahim’s US citizen daughter from attending the trial.1 And of course Dr. Ibrahim herself couldn’t come either since she couldn’t fly there.
Rather than issue a public decision, the court issued a “public notice” stating that “findings of fact and conclusions of law” have been issued but would not be published. I’ve never seen one of those before. Usually courts that feel a need to redact things issue decisions with the secret parts whited out – even if they go for pages.
In any case, the short notice tells us the outcome: a win on the key aspects of the merits.
Interstingly, publication of the full opinion is stayed until April 15, 2014, pending a ruling by the Court of Appeals on the secrecy. If, as I assume, this is a CIPA case, I think this date means the trial judge wanted to publish the opinion and the government objected. That would give the government the right to an urgent interlocutory appeal on the issue — the only way I can see the Court of Appeals ruling on anything relating to this matter anywhere near that quickly.
It would have been more morally pure for Snowden to choose to stay home and face the consequences after his act of civil disobedience.
I don’t think it follows, however, that Snowden is acting irrationally or treasonously or (wrongly) “taking a hostage” by setting up (or claiming to set up) an information-disclosure insurance policy against reprisals by the US. For evidence for this proposition one need look no further than the very eloquent NYT op-ed by Nasser al-Awlaki, The Drone That Killed My Grandson. Remember that we now live in a country that has a track record of executing US citizens (so-called “targeted killing”) without trial, at least outside the US. The limiting principle, we are told, is that the US only does this when it considers them a grave threat, and cannot get hold of them any other way because they are beyond the reach of arrest — not principles likely to be of great comfort to a Snowden.
For a cryptographer’s analysis of this tactic, see Bruce Schneier’s, Snowden’s Dead Man’s Switch. Schneier suggests it may be counter-productive:
I’m not sure he’s thought this through, though. I would be more worried that someone would kill me in order to get the documents released than I would be that someone would kill me to prevent the documents from being released. Any real-world situation involves multiple adversaries, and it’s important to keep all of them in mind when designing a security system.
A commentator counters that in fact this creates a different incentive:
If the US does not want these secrets released then it is in their interests to keep him alive.
It’s also makes it more imperative to capture him in case anyone else kills him.
National Security Letters Are Unconstitutional, Federal Judge Rules:
A federal district court judge in San Francisco has ruled that National Security Letter (NSL) provisions in federal law violate the Constitution. The decision came in a lawsuit challenging a NSL on behalf of an unnamed telecommunications company represented by the Electronic Frontier Foundation (EFF).
In the ruling publicly released today, Judge Susan Illston ordered that the Federal Bureau of Investigation (FBI) stop issuing NSLs and cease enforcing the gag provision in this or any other case. The landmark ruling is stayed for 90 days to allow the government to appeal.
The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters — on its own authority and without court approval — to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.
In today’s ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.
Full text of the decision in In Re National Security Letter. If this is upheld by the 9th Circuit, I would imagine it would be headed straight for the Supreme Court.
OBDisclosure: I am proud to be a member of EFF’s Advisory Board.
David Brin, the science fiction writer and part-time sociologist, likes to annoy people, preferably everyone at once. He may have outdone himself in CONTRARY BRIN: How Democrats and Republicans Wage War.
The contrast between Democratic and Republican styles of war could not be more stark. Beginning with the degree that they show deference to the United States Senior Officer Corps.
Do you know any generals or admirals? Ask them about this. Odds are, you’ll get no answer at all, due to their punctilious respect for civilian authority and resolve not to meddle in politics. But you may get hints. Anyway, continue searching and ask retired generals or admirals! And bear in mind these folks constitute the third best-educated clade in American life, after scientists and medical doctors.
One of these retired flag officers told me: “Democrats admit they don’t know anything about military matters. They consult. They ask questions. They listen.”
He added: “Republican presidents all assume they’re some mix of John Wayne and Patton. Plans are for nerds. Caution is for wimps.”
Republican administrations like war to look and feel like war! Tank armies and massed divisions… with politicians giving direct orders and over-ruling the professionals. And in the process, they pretty much destroyed the old-fashioned tools that they used.
When he entered office as Chairman of the Joint Chiefs of Staff, Admiral Mike Mullen was asked what he considered to be his most desperate concern. “The Army,” he said. Saving it from what had been done to it.
Now chew on this fact: When Bill Clinton left office, every U.S. Army and Marine Corps brigade was rated fully combat ready to defend the lives and interests of Americans. When George W. Bush left office, not one U.S. brigade was so rated. We went from all to none. And the GOP has a reputation for defense?
The Army that rolled over Saddam’s Republican Guard divisions in 92 and 03 does not exist anymore. What has replaced it is in some ways better, more agile, more professional, if also tired and badly in need of rest. It had to adapt and become agile, having been worn down to the bone. Things are better now, but it will take time. And meanwhile, we must confront deadly foes across a murky battlefield of terror and sabotage that spans the globe. So, whose doctrines are appropriate?
At first I thought this was surely the cool fact of the day: Global subway systems converge on common topologies. For example,
Patterns emerged: The core-and-branch topology, of course, and patterns more fine-grained. Roughly half the stations in any subway will be found on its outer branches rather than the core. The distance from a city’s center to its farthest terminus station is twice the diameter of the subway system’s core. This happens again and again.
But really, I think this is the cool fact of the day: the opinion in Hedges v. Obama, in which a fairly newly appointed District Court Judge, Katherine Forrest, holds that a § 1021 of the National Defense Authorization Act is unconstitutional. That vague provision could be read to give the US government authority to put US citizens in military detention for meeting with terrorists and writing about them.
It’s a nicely written opinion; the key move seems to be that the court described the plaintiffs’ activities in speaking, meeting and writing to the government, gave them plenty of time to consider the facts before the hearing, and the government was unwilling or unable to say that these first amendment activities were outside the scope of the statute. This tactical choice by the government also caused the Court to find that the plaintiffs had standing — not commonly the result in such cases. Similarly, the government’s unwillingness to give definite much less narrowing constructions to key statutory terms led the Court to hold the statute unconstitutionally vague.
This is really something — even though it’s just a preliminary injunction. That means there’s still the next round in the District Court, then an appeal to the 2nd Circuit, and perhaps beyond.
You learn a lot of strange stuff on the Internet. Some of it is even true.
Of things I have learned online that appear to be true this one, if it is true, has got to be among the strangest: Kodak Had a Secret Nuclear Reactor Loaded With Enriched Uranium Hidden In a Basement.
It really gives a whole new possible meaning to ‘too big to fail’. Do we need to inquire of major corporations if they have signed the Comprehensive Nucclear Test-Ban Treaty? What if CitiBank or JP Morgan have nukes?
Kodak, now in bankruptcy, says it had the reactor in order to do radiological tests of the purity of materials. And it dismantled the whole thing under government supervision in 2006. Just a few years later Kodak went into Chapter 11.
Could this explain why Kodak isn’t getting a government bailout? I kid, I kid. I hope.