US Court System Just Another Extension Of The Government's Ongoing Opacity Project

from the nothing-checked,-little-balanced dept

FBI director James Comey and Manhattan DA Cyrus Vance say we're "going dark." Others more attuned to the vast amount of data generated by everyday life say the opposite. But US magistrate judge Stephen Wm. Smith, writing for Just Security and speaking from firsthand experience, says there's a real darkness out there, but it's government-generated and it's obscuring the inner workings of one of the few checks against government power.

Over the last 40 years, secrecy in all aspects of the judicial process has risen to literally unprecedented levels.
It's not just the FISA court -- which, in contrast, is probably more transparent than it's ever been. It's the regular court system where criminal prosecutions are pursued. Documents which used to be easily accessible by any member of the public are now withheld by the request of the government with alarming -- and increasing -- frequency.
That traditional aversion to court secrecy has been overcome in the last few decades. To take but one example, the case name In re Sealed Case first appeared in 1981; it is now the most common case name on the D.C. Circuit Court of Appeals docket.
The same law that gives the government warrantless access to citizens' electronic communications -- the Electronic Communications Privacy Act -- also gives the government the privilege of preventing service providers from disclosing any information about these requests to targeted users. This blanket opacity is a problem for several reasons (First and Fourth Amendment concerns), not the least of which is no one -- not even Congressional oversight -- can provide an accurate accounting of these requests and their accompanying gag orders.
How large is this secret ECPA docket? Extrapolating from a Federal Judicial Center study of 2006 federal case filings, I have estimated that more than 30,000 secret ECPA orders were issued that year alone. Given recent DOJ disclosures, the current annual volume is probably twice that number. And those figures do not include surveillance orders obtained by state and local authorities, who handle more than 15 times the number of felony investigations that the feds do. Based on that ratio, the annual rate of secret surveillance orders by federal and state courts combined could easily exceed half a million. Admittedly this is a guess; no one truly knows, least of all our lawmakers in Congress.
The courts may be acting as checks against government power. Or they may be acting as rubber stamps. Given the number of gag orders and sealed documents, it's impossible to make that call. The courts are supposed to act as a check against government overreach and the only way to verify they're actually performing this function is to allow the public to see warrants, orders, motions, responses, and other court documents. But the government has pretty much destroyed this part of the accountability process by abusing a multitude of transparency loopholes -- most of those linked to "national security" or protecting law enforcement means and methods.

The government far too routinely -- in far too many routine criminal prosecutions -- deploys gag orders, sealed documents, ex parte presentations, in camera submissions and other tactics like parallel construction to ensure the judicial playing field is never level. These same tactics also prevent the public from seeing what's being done in their name and with their tax dollars.

Smith also points to the inevitable consequences of the government leading by example: the desire to treat public forums as somehow private arenas has bled over to civil litigation as well.
The same FJC study found that 576 civil cases filed in 2006 were completely sealed, meaning that the public was denied any information about the case, including the docket sheet. Rationales for the blackout varied from weak (“the parties wanted them sealed,” “to protect physicians reputations,” “to protect a party’s credit rating”) to non-existent (“17 pro se actions,” “30 habeas corpus and prisoner actions,” “33 forfeitures and seizures”).
Many of those listed still have a government nexus, but even cases that have no government intersection other than the use of the court system will still routinely contain sealed documents.
Even the most mundane employment suit will have a docket sheet littered with “Sealed event” entries.
As Smith notes, the numbers provided by the study are far from comprehensive. To fully tally the number of civil cases with sealed documents would take an examination of nearly every suit filed in federal court. Redacted dockets and sealed documents are apparently just as common in the civil arena, a large number of which can also be attributed to direct government intervention.

It's not one administration or one branch. It's everyone and it's been trending towards opacity for over 30 years. The government desires power without responsibility. The worst part is that the courts appear to be allowing it.


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  • icon
    That Anonymous Coward (profile), 12 May 2016 @ 2:13am

    The same system that demands total access to its citizens lives, engages in actions they will not tolerate from them.

    Because terrorism is used to justify these actions, the problem is the government has become the largest terrorist organization citizens should fear. Inventing evidence, actively creating violent plots, secretly spying on legal behavior, targeting citizens for the benefit of corporations, and the list continues.

    We are living in a nightmare that we gleefully helped create because we wanted to be 'safe'. Now there is no one to keep us safe from those 'protecting' us, and we stop asking questions or raising our voices to avoid incurring the wrath of a system out of control.

    Imagine if we stopped believing the hype and held our leaders accountable for allowing this rather than voting for someone based on spin.

    “People shouldn't be afraid of their government. Governments should be afraid of their people.”

    ― Alan Moore, V for Vendetta

    They are afraid, they fear us finding the will to say no more and actively pursue those who expose their misdeeds. We don't need less whistleblowers, we need more citizens to demand whistleblowers be protected and those in charge be held accountable for betraying the foundation of the nation.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2016 @ 7:57am

      Re:

      James Madison said it best...

      If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.

      I have to say that the Alan Moore quote is a bit of ignorance. Fear is not a word that should be used to describe how civilization "should" work under any capacity.

      Regardless of whom fears....

      Citizens should never trust Government period.
      Governments should never attempt to perform its duty under secrecy of any kind.

      Government does not have a mind so it fears nothing, it is a mindless beast that moves with unnerving hubris and disregard for individual liberty.

      reply to this | link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 12 May 2016 @ 10:14am

        Re: Re:

        Civilization should work where those in power fear what will happen when they betray those they represent. We have 'family values' types who betray what they try to enforce on everyone else voted back into office time and time again because they convince them the other guy would be so much worse. Pavlov rings the bell, and the voters slam the button showing support for someone willing to lie to them and demand that they do as I say, not as I do.

        They should fear passing bad laws will result in voters ousting them. They should fear that trading their votes for 'contributions' and voting against the best interests of the people will result in them getting fired. They should fear that opting themselves out of the laws meant for the little people will not be tolerated and they will be voted out. They should fear that spending years doing fuck all and threatening the stability of the entire nation to prove a point, should result in them not getting cheered but voted out and replaced.

        We should fear not voting will keep these political dynasty's alive and fucking us. We should fear that elected someone based on their view of a hot button issue, might result in horrible outcomes. We should fear that not understanding the rights we have been giving up, are going to screw us all.

        Government knows fear. Fear of the people finding out the truth and demanding change. Fear that if the people decide to look past the dog whistles, they might unite to make change happen. Government fears the truth getting out, and the scales falling from the publics eyes.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 May 2016 @ 10:34am

          Re: Re: Re:

          Individuals "IN" government may fear a few things but Government itself never has. You would do well to figure out how to separate government and the individuals serving in it from each other.

          Have you ever... I mean even once in your life, looked at world history? Government has never feared a thing, sure people try to make it look like it ever feared something, but it does not, has not, and will never fear a thing.

          Now on to the lesson, when you see those in government running in fear what do you get? Freedom or Oppression? You can bet that oppression is the result, so again, you are wrong in your approach to describing the problem and wrong for applying an ignorant quote.

          Read the founding fathers, they knew just exactly what is, what was, and what will always be up in regards to government, but you (like so many others) keep ducking out on the wisdom and foresight that founded the USA.

          America is under assault from every direction, assaulted by its down government every second of every minute because that is literally how often the constitution is broken. It is under assault by its Citizens for they no longer even know how their Government should operate and have been intentionally made stupid by the Government Control Public School system. It is under assault by foreign interests, whom all have benefited both directly and indirectly by the engine that made America great, and now they seek to steal it from us and make us into slaves. We seem to holding the door open as they rob us!

          The problem is dire and it looks like there is no recovery. The biggest hope in Trump is terrible because he does not stand for liberty either. Everyone, and I mean EVERYONE votes in the candidate they believe will get them the most success be it through government welfare for the general left of lower taxes for the general right.

          Neither side gives a damn about the nation before their own greed, and people like you that cannot figure out how to talk about the problems need to stop. You are not helping, you only achieve turning the problem into a joke where people quip at the issues in parallel to their favorite idiot Hollywood movie. Then they go back to their miserable lives and vote in another party candidate that is run by people you cannot even hope to know or understand their motivations!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 May 2016 @ 11:13am

            Re: Re: Re: Re:

            I am hoping Trump will be so insane that he forces things through too fast for people to adjust and causes widescale revolt over the loss of liberties. Instead of the current frog slowly boiling in the pot for the last several decades.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 12 May 2016 @ 11:40am

              Re: Re: Re: Re: Re:

              That's what I've decided to go with. A vote for Trump is hope for real change... just not the kind of change he thinks he'll bring. I'm kinda glad Bernie's out of it, as that takes away the urge to go with 'working within the system' yet again.

              BTW - I'm overstocked on pitchforks. Got any torches you'd like to swap for a few of 'em?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 12 May 2016 @ 12:10pm

                Re: Re: Re: Re: Re: Re:

                I tend to agree with you both, but since it did not happen with Obama... yea I don't really see it happening with Trump. I was just hoping for the idea of Seeing the Republican party destroy itself.

                I was hoping that the Democratic Party would implode too, but I guess we will have to wait for another time there.

                We are squarely locked in the death spiral George Washington wrote about in his farewell address. It is a shame the first president was already able to foretell at the time of how the US would destroy itself.

                reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 May 2016 @ 10:38am

          Re: Re: Re:

          Government knows fear. Fear of the people finding out the truth and demanding change.

          That explains why so many in government see those outside of government as "terrorists".

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 May 2016 @ 10:43am

            Re: Re: Re: Re:

            This is such fucking bullshit!

            The American People already know that the Government is corrupt, kill needlessly, imprison without cause and still do nothing about it.

            The Government is NOT afraid of shit, they just keep it quite because it is the path of least resistance, fear is not even a factor at all!

            reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 May 2016 @ 10:41am

          Re: Re: Re:

          Here I may have the simplest way to describe it.

          Does a Parent Fear their child before dispensing punishment? They do not, and neither do they fear repercussion of being dead wrong either. It is theirs to command and the child to obey!

          This is government, any petty fears birthed in government by a single individual is equatable to the fear a parent may have over a single event.

          And in either of which NEVER produce a positive outcome and only stifles the relationship!

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 12 May 2016 @ 10:59am

            Re: Re: Re: Re:

            Does a Parent Fear their child before dispensing punishment?

            You seem to view the role of government as that of an authoritarian parent. So did King George. The United States founded on a rejection of that philosophy. Many people seem to have a hard time understanding that.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 12 May 2016 @ 11:00am

              Re: Re: Re: Re: Re:

              was founded

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 12 May 2016 @ 11:10am

              Re: Re: Re: Re: Re:

              Well Duh, now you can begin to see what is happening.

              The government is in fact now & will always try to BECOME EVERYONE'S PARENT! The founders made it clear that the natural direction of government is towards tyranny. It's not even a little bit of a mystery despite everyone acting like there is some secret to it all.

              Now, in regards to my comment that is still a non-sequitur because I only draw the parallel between the two in regards to FEAR!

              It matters now what initial form a government will take, because there will always be an agent of evil trying to get into power to take whatever advantage they can of it.

              This is why it is so critical that citizens be properly educated on how the government is supposed to work.

              But "fuck that noise", says most stupid Americans without a clue!

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 12 May 2016 @ 11:49am

                Re: Re: Re: Re: Re: Re:

                Thanks for all the enlightenment & stuff. I'm gonna guess that you've never read a poem or laughed at a joke in your entire life, because 'Fuck metaphor! Manifesto, bitches!'

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 12 May 2016 @ 12:15pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Naw, I am actually a big clown.

                  I have just grown tired of seeing so many fellow Americans not getting it. Refusing to learn about how their government is supposed to operate and especially joining a political party and then treating the opposing party like shit.

                  We must all be Americans first and vote in politicians that put America first, not a bunch of policies crafted behind closed doors at the behest of special interests and foreign nations.

                  It really does not matter if you are for or against the special bigotry of the day, stuff like that never goes away, but the nation will go away if we let our petty ignorance's keep us all down.

                  "That Anonymous Coward" generally has pretty good things to say, but this one just got my goat!

                  reply to this | link to this | view in chronology ]

                  • icon
                    John Fenderson (profile), 12 May 2016 @ 4:28pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "and vote in politicians that put America first"

                    Easy to say, but hard to do. Politicians like that are exceedingly rare these days.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Justme, 13 May 2016 @ 12:30am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Politicians like that are exceedingly rare these days.

                      And between the media and special interest groups spewing negative propaganda, they have almost zero chance of making it to past the primaries.

                      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 May 2016 @ 11:11am

        Re: Re:

        The tree of liberty will be getting watered fairly soon I figure.

        reply to this | link to this | view in chronology ]

  • identicon
    Cowardly Anonymous, 12 May 2016 @ 3:46am

    So tired of the government of Self veiled as self government

    Sounds like big brother is the one going dark .. because (fill in 'reason' here) The thing that just kills me.. all of these people grabbing for the power and perks are leaving the country worse off for following generations, MY kids kids kids etc and theirs too deserve more than the shit government being created by the shit birds warmly nestled in the shit they themselves created.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2016 @ 9:57am

      Re: So tired of the government of Self veiled as self government

      What do 'following generations' have to do with the next fiscal quarter?

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 12 May 2016 @ 5:41am

    Going Dark

    Gov't official 1: OMG!!! We're Going Dark! People are able to communicate in secret!

    Gov't official 2: I have a solution. Get rid of FOIA. Get rid of the constitution and the inalienable rights it recognizes. Have secret courts, warrants, arrests, trials, evidence, convictions and secret prisons.

    Citizen: Now that the government is 'going dark' or opaque, does that really help government to understand terrorists better? Maybe by becoming more like them?

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 12 May 2016 @ 11:31am

      When Abu-Graib was uncovered in 2003...

      I followed a certain logic. Some officials felt we had to torture POWs in order to preserve the United States.

      But now the United States we've preserved is one that tortures POWs, id est no longer respects the founding principles that make the United States a nation worth defending.

      It applies here:

      Some people believe we have to let our agencies work in secrecy to preserve the United States.

      But that turns the United States into an opaque system of government, i.e. unchecked by the people.

      Which is entirely contrary to the founding notion of government for the people by the people.

      So now that we're here, what makes the US anything more than just another oppressive tyranny?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 May 2016 @ 12:08pm

        Re: When Abu-Graib was uncovered in 2003...

        Our superhuman tolerance for absurdly hilarious irony? A mastery of cognitive dissonance?

        I do have to thank the government for helping me find religion, though. Hail Eris!

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2016 @ 6:05am

    I am reminded of this cartoon from 1948

    Make Mine Freedom

    https://www.youtube.com/watch?v=u6H63CD7uQA

    reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 12 May 2016 @ 7:37am

    // Sealed //

    // Sealed Response to Article RE: Sealing //

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2016 @ 10:16am

    It's weird, I think a majority of people are getting exactly what they've been demanding, even if they wouldn't recognize it as such. A safe space is: a place we don't have to listen to bigots (even though the bigots still exist); a place in which we don't have to deal with conflict (even though the fights are still going on); a place where reality is best when you know the least, and a game of peek-a-boo really does involve Mommy vanishing from existence.

    A shit-ton of people embrace the idea that ignorance is bliss, and governments are happy to give the people what they want.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2016 @ 12:44pm

      Re:

      Too many people take the blue pill.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 May 2016 @ 1:06pm

        Re: Re:

        I actually thought about mentioning 'that movie' with not-Elrond-this-time in it, but the cool kids all reference 'that other movie' (also starring not-Elrond-in-this-one-either), and I don't want 'em making fun of me for being old-fashioned.

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 12 May 2016 @ 11:19am

    The thing about going dark to even oversight...

    Is that we can assume the worst regarding those statistics we don't have.

    And then we'll probably discover that we've underestimated the damage done.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2016 @ 3:00pm

    US Court System Just Another Extension Of The Government's Ongoing Opacity Project
    Congratulations everyone! Despite the nature of much of the TD readership, not a single person has made a horrible joke involving the phrase 'Ongoing Opacity Project', acronyms, and software development. Your restraint is admirable.

    reply to this | link to this | view in chronology ]


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