Sealed With A Kiss (Update)

Those charged with the security of the United States of America from threat say that the threats are real, and they are doing what they have to do to save us from harm. And I believe them.  Not because I know anything more than anyone else, but because there has been harm and there are forces out there in the mist that do not look kindly upon my homeland.

So why then am I not an acolyte of Stewart Baker?  Because this is nothing more than a “belief,” something I choose to accept in the absence of evidence.  It’s faith. And faith only takes me so far.  The government occasionally reveals stories of its successes, but they tend to show less success and more manufacture of a success where no threat would exist if the government had kept its nose out of it.

On the other hand, there are far too many stories of harm happening to good people at the government’s hand in the name of protecting us, and these stories provide foundations that don’t require me to squint hard, cover my ears and merely believe. They allow me to know.  And what I know isn’t pleasant.

At Techdirt, Tim Cushing writes of one of the government’s primary weapons in the battle against these threats to our security, National Security Letters.

Throw the words “national security” around frequently enough and you might start to believe it actually means something. The EFF’s battle against the government’s use of National Security Letters (NSLs) is being fought mostly under seal (the EFF can’t even reveal whom its clients are). To be sure, there is sensitive material being discussed, but the government’s paranoia has extended so far as to seal documents written by entities with no access to classified or sensitive material.

The Reporters Committee for the Freedom of the Press (RCFP) recently filed an amicus brief in this case on the EFF’s behalf, arguing that the non-disclosure demands of NSLs are a form of prior restraint, something that is clearly unconstitutional. It also notes the chilling effect this has had on journalism.

The information at issue is not just important for its own sake, but because, as recent reports have shown, fear of government surveillance has deterred confidential sources from speaking to journalists about a wide range of topics. The brief emphasizes that more knowledge about the NSL program can give sources and reporters confidence that their communications are confidential.

Layer upon layer of secrecy, including the demand that public information be held in secret as well, in order to thwart our enemies who would use this information to accomplish harm.  It’s sensible if we accept the initial premise that these threats exist and our ability to prevent harm is dependent on maintaining secrecy from our enemies. But information which is already public, known to those who are sufficiently interested in knowing, like our enemies, makes no sense at all.

Whatever the government’s stated reasons for requiring the brief to be filed under seal, it’s clearly wrong.

“The Court cannot constitutionally seal this brief,” the Reporters Committee wrote in the motion. “Amici have had no access to confidential materials in the case; the brief only includes information that is already public; and there are clear public policy reasons for requiring that the materials be open.”

The government doesn’t know when to quit. It’s sealed brief requirement makes about as much sense as government agencies’ initial reactions to the first few leaked NSA documents — instructing their employees to not look at publicly-available information because the documents were supposedly still “classified.” As if that designation made any sense under the circumstances.

To the extent that there is validity to the government’s point, to its efforts to protect us and save us from harm, the approach of concealment at all costs undermines both the Constitution as well as our willingness to continue our belief.

Perhaps I’m a wee bit more skeptical than most, and also a bit less inclined to accept the government’s word that it has to do this to keep us safe and would never undermine the principles of our constitutional democracy in the process, but the compulsion is to turn cynical and disbelieve the government on every claim it makes.

Knowing a few of the people who work in government, and who look me in the eye and swear that they are doing what they claim to be doing, saving us from the terrorists and doing as little harm to the Constitution as possible in the process, I realize they believe in the righteousness of their cause and methods.  As much as I may like you personally, and enjoy an occasional cocktail at your expense, and don’t want to call you mean names because of this, you’re blind.

You have chosen to believe your talking point. You have wrapped yourself up in the cocoon of excuses and explanations, of self-serving rationalizations of why everything you do is for the greater good. You have decided that you get to decide the greater good for the rest of us.  You justify this based upon your superior knowledge of “what’s really going on out there.”

But you can only get away with this because you deny me, and others who care, the ability to have this knowledge.  And, as with the EFF and the RCFP, even the knowledge of what’s already known.

It’s not that I don’t like you, but that I can’t believe you. It’s not that I think you’re lying, but I am unwilling to let you do whatever you please with my rights because you ask me to trust you.  And if your claims of threats are anywhere close to accurate, then you do a terrible disservice to your cause by demanding that any mention of your efforts be under seal, no matter whether there is any rational justification for it or not.

I, like most Americans, want to trust the people who serve in my government.  But the road to hell is paved with good intentions, and the demise of our nation is far more likely to come with the kiss of the well-intended than at the hands of a terrorist. That’s what I believe, and it scares me.

Update:  Kevin Underhill at Lowering the Bar notes that somebody leaked a classified report:

The McClatchy news service reported Friday that it had obtained a leaked copy of a Senate Intelligence Committee report that contradicts pretty much everything the CIA has said about its Detention and Interrogation Program. Here’s the list of the report’s conclusions (PDF), but let me just break it down for you:

  • The CIA tortured people;
  • Even under to the DOJ’s definition of “torture,” it tortured people;
  • It lied about how many people it tortured;
  • It lied about how brutal the torture was;
  • It “avoided or impeded” congressional oversight;
  • It lied about whether the torture worked; and
  • The torture didn’t work.

Democratic Senator Dianne Feinstein said she was absolutely outraged by this. And by “this,” of course, she meant the leak. “If someone distributed any part of this classified report,” she said, “they broke the law and should be prosecuted.”

I don’t know whether I speak for anyone else, but I do not want to be kissed by Senator Feinstein. Oh no, I do not.

45 comments on “Sealed With A Kiss (Update)

    1. SHG Post author

      One of my favorite Don Rumsfeld quotes:

      Reports that say there’s — that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things that we know that we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns, the ones we don’t know we don’t know.

      And they will all bite you in the butt.

  1. pml

    As one of the people that do what your writing about, I have to say that sometimes its better that you just don’t ask what we do to protect you. Its my belief that the majority of americans simply want us to protect them from harm and keep them safe and they are not real interested in how we do it as long as they are not adversely affected.

    People simply do not want to know the details as they find them disturbing.

    1. SHG Post author

      Some people. Not all people. Some people prefer to make the decision about the trade-off of security for liberty for themselves.

      1. Jesse

        For some of us there is a further consideration, the harm that befalls the hapless foreigners due to our government’s “protection” of us.

        Not only are these acts often counter-productive to the stated goal (and thus brings into question the scope and nature of the threats the government is supposedly protecting us from), but quite frankly I’d trade some of my own security to see more of those foreigners live, and live with their sight and limbs intact. The “greater good” includes more than US citizens living on US soil.

    2. william doriss

      It’s something like sausage making? We don’t want to see sausage being made, because if we did, we might not want to eat sausage ever again! Like SHG says, some of us don’t want others making those decisions for us. How dare they?

      1. Patrick Maupin

        It’s more like before the actual sausage is made, in an Animal Farm sort of way.

        As one of the farmers who does what you are writing about, I have to say that sometimes it’s better that you just don’t ask what we do to be able to feed you and keep you warm. It’s my belief that the majority of animals simply want us to protect them from each other and keep them well-fed and happy and they are not really interested in how we do it as long as they don’t realize they will be adversely affected later.

        Animals simply do not need to know the details as they find them disturbing, and that might be bad for farmers.

        1. william doriss

          So now we’re animals,… rats in a maze? That’s what I was afraid of. Otherwise, we urban/suburban folk thank you for your service to the country, (by feeding us and keeping us warm).

            1. [Ed. Note: Stupid Name Deleted.]

              Of course, in A Few Good Men, Col. Jessup is arrested for murder after this stirring speech, held accountable for conduct he so eloquently had chosen to presume was beyond the reach of the laws against murder. Oh to live once again in that America — where maybe the existing law that “no exceptional circumstance whatsoever” may be invoked to excuse torture, and where the right of the people to be secure against warrantless search, or the right not to be deprived of life liberty or property without due process — was actually enforced against those who think it’s their right to ignore those rules.

            1. onlymom

              I’m sure you do. You are after all a text book example of one. At least where law enforcement is concerned.

            2. SHG Post author

              There’s a peculiar comfort knowing that the flaming nutjobs think I’m a cop lover. Maybe I’m not as biased as others say.

            3. onlymom

              I’m not sure how demanding that gov’t agents be liable for the same punishment when caught in the act as we are is being a “flaming nutjob” except of course to a GOV’T STOOGE that is.

            4. SHG Post author

              Maybe it has to do with your view that holding them “liable” means shooting them? Nice capitalization of “GOV’T STOOGE,” by the way.

            5. Frank Ney

              That you’re annoying both sides equally is an indication that you’re doing something right.

            6. Wheeze The People™

              But you will agree that Americans are generally like freedom-loving sheep or maybe free-range sheep, no?? . . .

  2. John Brleycorn

    There are a few dozen really outstanding remixes of Alice falling down the rabbit hole.

    I should post them all! So many flavors though and so many languages.

    Shame on you, same on you not, esteemed host.

    Do you really need this language to live let alone comprehend and mend.

    Cattle have nose rings.

    Humans have no fence.

    1. SHG Post author

      I considered Brian Hyland’s cover, but decided it might cause you internal bleeding. I couldn’t bear to be responsible for that.

  3. John Jenkins

    I once asked Orin Kerr whether Stewart Baker was a real person or a sort of parody account the VC posters could use to stake out the most absurd positions on national security they could come up with. The worst part about SB, his acolytes and the security apparatus in general, is that when they talk about things of which I have personal knowledge, they often demonstrate either ignorance or extremely shallow understanding.

    I think the most useful heuristic in evaluating the trustworthiness of a source on a subject about which one is ignorant is to evaluate the trustworthiness of that source regarding subjects about which one is knowledgeable. Accordingly, I think that the current security apparatus and it’s cheerleaders are not at all trustworthy and more often than not are spinning bullshit into whole cloth from which they can then make up their stories to scare people into ceding control over those people’s daily lives. The apparatchik are either lying or showing an utter disregard for whether they are telling the truth. I cannot help but think that, from that position, they must always do more harm than good, and what good may be done is only an accidental product of their self-reinforcing FUD campaign to stay relevant (and funded!).

      1. John Jenkins

        Hah! He laughed and confirmed that Mr. Baker is indeed a real boy, though I continue to have my doubts about Mr. Baker’s sincerity. I find it hard to believe anyone could hold the positions he stakes out.

  4. Bruce Coulson

    I believe Ben Franklin covered the ultimate consequences of this sort of trade-off some time ago.

  5. Wheeze The People™

    Here’s a few tasty judicial morsels that I believe capture your angst quite well:

    “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.” (Olmstead v United States (1928) 277 U.S. 438, 479 (Brandeis, J., dissenting). See also Minersville School District v. Gobitis (1940) 310 U S. 586, 604 (Stone, J., dissenting) (“History teaches us that there have been but few infringements of personal liberty by the state which have not been justified . . . in the name of righteousness and the public good.”)

    Unfortunately, much like your opinion on such matters, those opinions were dissenting . . .

    1. SHG Post author

      First, it’s not angst. Don’t confuse emotion with reason. Second, fortune cookie quotes from dissenting opinions are best left to reddit.

      1. Wheeze The People™

        I am sorry I was unable to please my Lord on this day. Having said that, your post expresses a degree of emotion in that you assert faith and belief that you accept in the absence of evidence. Further, you have clearly stated that you are apprehensive in accepting the truth government’s narrative. Apprehension=Angst, according to Websters . . .

        Plus I really like the word angst and try to use it when I can, ever since 1982, when The Sparks released the album “Angst in My Pants”. It was truly da bomb . . .

        If you no likey, please delete the link below:

        1. SHG Post author

          Snippy today, are we? Did I clearly say I was “apprehensive in accepting the truth government’s narrative” (even assuming that was phrased in the English language)? I think not. As for The Sparks, well, you get a free one every once in a while. Not for my angst, but yours.

          1. Wheeze The People™

            Hackers!! he exclaimed!! They purposely and in an unauthorized manner took the necessary and grammatically correct “of the” out of the referenced sentence in my comment, pointing once again to a vast global conspiracy to discredit me . . .

            Where is the Computer Fraud and Abuse Act when you really need it?? I want satisfaction, but I alas, I can’t get it . . .

  6. John Barleycorn

    Esteemed host, I sincerely hope your baseline twists your unspoken thoughts like mashed potatoes and high temperature seared bone in goat meat melting with flavor.

  7. onlymom

    wrong actually you don’t have to shoot them. That is simply one of the same legal responses for non-compliance even your buddies the police use. Hell even the United States Supreme Court has said that on a number of occasions. What I’m saying is that when legal American citizens see an officer going outside the law so badly that even a lowly and useless “citizen” can see it. That citizen has the legal right and duty to order the officers to stop at that point if they refuse that citizen has that same legal right and duty to stop them no matter what amount of force is used. After all the cops have taken that same authority to themselves even when illegal KILLING those who have committed no crime. Have been standing with their hands up or their backs turned. You honestly think they are STILL cops and still covered by the illegal law enforcement excemptions to violence being used to stop them?

    and you think I’m the one in a dream world. that’s funny

    1. SHG Post author

      Not a dream world. You’re batshit crazy. And see, I’ve let you post some comments today. Now, it’s back to the dark hole for you.

      1. william doriss

        OnlyMom is now OnlyToast. Another one bites the dust on the SJ forum. I don’t think she’s really “batshit crazy”. I think her English is simpley poor. She might be from Guatemala, for all you know?!? What she’s really saying–if you can get past the poor syntax–is not funny at all. The way she says it is what’s funny. You have to distinguish between the messenger and the message.

        1. SHG Post author

          You forget, Bill, that you’ve only seen a couple of her comments today. I get them daily, reacting to a variety of posts with solutions that almost invariably advocate shooting cops, but trash them. I fully understand her message, that when cops engage in lawless conduct, they should no longer enjoy the protection afforded police, but should suffer the same consequences as anyone else, including and up to death if need be. I get it.

          The message has three monumental flaws: First, it’s often unclear that police are acting lawlessly, though onlymom is quite certain that she possesses the ability to tell, and hence strip police of their “right” not to be shot. Second, advocating violence toward police, even when they are perceived as acting lawlessly, tends to get people killed, and those people usually aren’t the cops. And third, her belief in the right to do this is, with very limited exceptions, contrary to law, though onlymom has her own view of the law that differs from the rest of us, but she can explain that by arguing that she’s right and we (especially badge-lickers like me) are wrong.

          That, Bill, is why she’s batshit crazy. Did you know her from the meetings?

          1. william doriss

            Thank you for that explanation, as if any were really needed. It was generous of you to post her, obviously a non-lawyer. You were trying to limit non-lawyer access, I thought, but you keep posting us sheep–I mean civilians–anyhow,… to a certain extent.
            I can’t figure out if BrleyPorn is a lawyer or not? He’s got me buffaloed.
            Also, was pleased to notice the appearance of Judge Kopf today, twice. I think that’s wonderful. You now get a mixed bag of lawyers, civilian AND judges. Who woulda thunk? I’ll bet that does not happen in Russia or China. God bless America,… this time with a ‘c’.

            1. SHG Post author

              I don’t have anything against onlymom, per se. It’s just not the level of commentary or sophistication that I will allow here. And I’ve told her as much. She is free to express herself all she wants, as wrong as she may be, but just not here.

              As for JB, he got maybe 2 out of 20 comments posted yesterday, and might not feel it’s worth his while today. He promised me concise and cogent, and I’m holding him to it.

              And as for Judge Kopf, I very much appreciate his willingness to engage. It’s not really in his best interests, but it certainly is in mine. So you know, there are other judges who comment here as well, but they don’t broadcast it and I never kiss and tell.

            2. John Barleycorn

              For some reason or another whenever more than four cocktails are involved I always think I will bat at least .400.

            3. SHG Post author

              Sometimes, it’s a grand slam. Sometimes, it’s a spectacular strike out. And if you’re hoarding cocktails, we have a different issue.

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