> Would a secret court that advertised its location be more palatable to you somehow?
For me, yes, what is secret about a secret court matters.
Classified proceedings? I think there could be room for that, within reason and with some kind of oversight.
A court that makes a secret of its existence? No way. That makes oversight more difficult -- one of the few who oversees it can't make a democratic issue of how it operates.
A court that makes its rules and workings secret? Nope.
A court that makes its location secret? Not sure if that's particularly bad if everything else is on the level, but I also don't know if it's necessary, and keeping the location secret seems like a step towards forgetting it's there and what it's doing. So I'm less comfortable with that.
> If National Security is an issue, then delay the publication of court records by some fixed amount, and require an onerous process to keep the ongoing stuff sealed for those rare cases where it's needed.
Didn't you just describe a secret court? I don't think these records don't exist or are permanently classified.
> the previous process which was to just call a judge of a secret FISA court which no one is really allowed to know the details of.
This is simplifying the process to imply it’s nothing more than just a phone call away. I do not think any court works like that. They still have to argue their case before a judge of the court which also allows third parties to submit material in the case.
Simply saying “no one” is suppose to know about these courts is portraying this process as something unconstitutional and nothing more than a secret society of government friends. If by no one you actually mean the public, then you have a point. There’s national security concerns around these type of things that you’re ignorantly ignoring.
You act as if this court has no existed for over 40 years and under multiple administrations from both side of the aisles.
> courts must not be allowed to consider matters of great importance under the shroud of secrecy
That's his opinion, and nothing more.
As it turns out there are many great reasons for allowing courts to consider things under a shroud of secrecy.
E.g. deliberations about a warrant to search the home of an accused pedophile. The accused is innocent until proven guilty so the court would have a strong interest in not making such a warrant public (and in fact we screw this up too much already with sex-related cases IMHO).
Or in embezzlement cases, having a completely public deliberation about warrants would tip off the crooks ripping off the taxpayers into avoiding the very means of communication intended to be wiretapped.
> Secret courts are a shame. Secret directives, on the other hand, can be compatible with the rule of law and an independent judiciary, provided they're lawfully authorized and can be challenged in a court.
I presume you also forgot to add this before challenged in a court...
> ..., whistleblowers are protected, and can be ...
You see, because that's the thing with secret directives, they're redacted from the public eye. The only way we get visibility into them isn't with FOIA requests, it's with whistleblowers who feel the government is doing things wrong, and if they're not protected, they rarely come forward.
The government isn't even revealing the existence of search-warrant-type documents. Who do you imagine would have the ability to compel the revelation of a secret of this magnitude?
> I don’t consider secret courts like FISA sufficiently comparable to independent judicial oversight.
I never said they were, that's a different discussio. I said the concrete fact of abuse of the national security surveillance apparatus against political opponents when we didn't have even that is why we have FISA (the law, which involves a lot more than the two courts it creates.)
That's not true; it doesn't make sense to me even if it were possible to guarantee proper handling. The risk of the government abusing it's power in a completely legal way is greater than some crimes going unsolved because documents remain secret.
What matters to me is the power imbalance; with few exceptions whatever the government can do, normal people should be able to do to.
> How large of a group of people should be able to have secrets?
That's not really the issue. It's not a matter of the government being forced to tell you something. They can keep a secret if they can keep the secret. But if you can present evidence which you've gathered on your own, you should be allowed to present it to the court and be heard. And if the government doesn't care to contradict your version of the facts by presenting contrary evidence then they shouldn't have to, but that may mean they'll lose their case.
>Right, in other words you have no actual argument.
On the contrary, I have the only meaningful argument (about the actual thing that matters, whether it should be approved or not) -- and the counter-argument put forward is just about the legality (and even that depends on ..."secret documents" not admitted to the public to judge the case).
(Not to mention that courts make moral judgements all the time).
Which cannot be done, when any issues with these laws are discussed in "secret courts" [0], and where the individuals involved cannot reach out to experts in the field, because their hands are tied by gag orders.
The strength of the warrant becomes less when you recognise that FISA approves almost every request it gets. The warrant is little more than a proforma.
The structure of the current laws prevents a lawful answer to the situation.
I can't advocate breaking the law, that would be going against myself.
But neither can I advocate for the law, here, because it is failing to protect the people of the nation, from the power of the nation.
> but it was also deemed a risk to national security for any part of it to be public
Surely it's OK to keep secret if it WAS a matter of national security? Quite possibility that is open to debate in this case, but it seems sensible at least to have this provision in law?
agree, secret court is too much. A confidential interpretation by a government lawyer would be enough as always.
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