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Does anyone know why judges are so deferential to the US security apparatus? It seems in general like they have a clear bias toward "taking the security system

by hf8665 6y ago

Does anyone know why judges are so deferential to the US security apparatus? It seems in general like they have a clear bias toward "taking the security system at its word", even when common sense would dictate otherwise in any particular case. It's sincerely puzzling to me why national security entities seem to get treated so differently and I wonder if there's some legal precedent or consideration I'm not aware of. Like in this case, I fail to understand how releasing the number of requests would have any security bearing.

LatteLazy 6y ago
When the government pays your salary and controls your workload and picks whether you get promoted...
lawlessquestion 6y ago
Judges are nominated by the president, and approved by the senate. If the people that nominate the judges are controlled hook line and sinker by the security apparatus, there's no reason to believe judges would operate any differently. They know where there bread is buttered
pinkfoot 6y ago
> Does anyone know why judges are so deferential to the US security apparatus? Kompromat?
lokar 6y ago
If what you mean is why do most of the judges tend to rule the same way in this area, it's due to precedent, they don't really have a choice. The balance (or lack of one) you note was mostly established by higher courts years ago.
bladegash 6y ago
No judge wants to be responsible for a future terrorist attack or degrading intelligence capabilities against other foreign adversaries, regardless of whether the threats are real, perceived, and/or imagined. In this case, releasing the numbers might shine light into their capacity for investigations. In other words, sometimes security/capability gains more from perception than reality.
- ken 6y ago
  I can’t imagine what “terrorist attack” would depend on knowing the exact number of requests, and fails if only a rounded number is known. Can you suggest any possible scenario?
  - bladegash 6y ago
    It’s not about a specific attack or their being a direct connection between the number and an attack taking place. It is about concealment of the capability/capacity the Government has to counter those attacks. I could see releasing the number giving insight into the limited capability the government has to initiate, process, and follow-up on these types of Orders. Who knows, though.
- dhimes 6y ago
  I agree. Kind of like Pascal's Wager[1], but for terrorist attacks. [1] https://en.wikipedia.org/wiki/Pascal%27s_wager https://en.wikipedia.org/wiki/Pascal%27s_wager
- hf8665 6y ago
  That was my explanation for awhile, but at some point the logic of the security arguments started to seem patently flawed. Also, judges seem to be ok with all sorts of judgments against domestic (state and federal) entities. It's almost as if when national security is mentioned, everything is thrown out the window. It's like a magic codeword or something and I don't understand the legal basis for it. You make a good point re: investigatory capacity, but it seems even that is fuzzy and could maybe be handled through other means (aggregating time periods or using some kind of required delay).
  - bladegash 6y ago
    I think the issue is we’re trying to explain something irrational (a fear that something might happen) with logic. Judges make similar judgements in protective/restraining order cases. They would rather err on the side of caution, because as someone else mentioned, the downside to allowing the invocation of national security has a perceived minimal downside (minor inconvenience), vs. the downside of a terrorist attack taking place is much more catastrophic. Anyways, don’t think anyone is wrong here, just some theories.
tehjoker 6y ago
Okay, you rule against the CIA and try sleeping well at night. Also, the judges that get these cases were undoubtedly picked (at some point of elevation in their career) for how "reasonable" they would be on these issues. You gotta remember that "national security" became a thing decades ago (Truman? Eisenhower?), so the system has gone through many several generations of selection pressure.
- TheRealDunkirk 6y ago
  I guess you can level the blame at Truman. Eisenhower himself tried to warn us against going down this road, but the game had already been rigged against us.
DenisM 6y ago
My first guess would be that they are following the law as written, as is their job. And it's hard to challenge such law as unconstitutional because no right to privacy is explicitly written into the constitution.

by hf8665 6y ago

LatteLazy 6y ago

When the government pays your salary and controls your workload and picks whether you get promoted...

lawlessquestion 6y ago

Judges are nominated by the president, and approved by the senate. If the people that nominate the judges are controlled hook line and sinker by the security apparatus, there's no reason to believe judges would operate any differently. They know where there bread is buttered

pinkfoot 6y ago

> Does anyone know why judges are so deferential to the US security apparatus? Kompromat?

lokar 6y ago

If what you mean is why do most of the judges tend to rule the same way in this area, it's due to precedent, they don't really have a choice. The balance (or lack of one) you note was mostly established by higher courts years ago.

bladegash 6y ago

No judge wants to be responsible for a future terrorist attack or degrading intelligence capabilities against other foreign adversaries, regardless of whether the threats are real, perceived, and/or imagined. In this case, releasing the numbers might shine light into their capacity for investigations. In other words, sometimes security/capability gains more from perception than reality.

ken 6y ago
I can’t imagine what “terrorist attack” would depend on knowing the exact number of requests, and fails if only a rounded number is known. Can you suggest any possible scenario?
- bladegash 6y ago
  It’s not about a specific attack or their being a direct connection between the number and an attack taking place. It is about concealment of the capability/capacity the Government has to counter those attacks. I could see releasing the number giving insight into the limited capability the government has to initiate, process, and follow-up on these types of Orders. Who knows, though.
dhimes 6y ago
I agree. Kind of like Pascal's Wager[1], but for terrorist attacks. [1] https://en.wikipedia.org/wiki/Pascal%27s_wager https://en.wikipedia.org/wiki/Pascal%27s_wager
hf8665 6y ago
That was my explanation for awhile, but at some point the logic of the security arguments started to seem patently flawed. Also, judges seem to be ok with all sorts of judgments against domestic (state and federal) entities. It's almost as if when national security is mentioned, everything is thrown out the window. It's like a magic codeword or something and I don't understand the legal basis for it. You make a good point re: investigatory capacity, but it seems even that is fuzzy and could maybe be handled through other means (aggregating time periods or using some kind of required delay).
- bladegash 6y ago
  I think the issue is we’re trying to explain something irrational (a fear that something might happen) with logic. Judges make similar judgements in protective/restraining order cases. They would rather err on the side of caution, because as someone else mentioned, the downside to allowing the invocation of national security has a perceived minimal downside (minor inconvenience), vs. the downside of a terrorist attack taking place is much more catastrophic. Anyways, don’t think anyone is wrong here, just some theories.

tehjoker 6y ago

Okay, you rule against the CIA and try sleeping well at night. Also, the judges that get these cases were undoubtedly picked (at some point of elevation in their career) for how "reasonable" they would be on these issues. You gotta remember that "national security" became a thing decades ago (Truman? Eisenhower?), so the system has gone through many several generations of selection pressure.

TheRealDunkirk 6y ago
I guess you can level the blame at Truman. Eisenhower himself tried to warn us against going down this road, but the game had already been rigged against us.

DenisM 6y ago

My first guess would be that they are following the law as written, as is their job. And it's hard to challenge such law as unconstitutional because no right to privacy is explicitly written into the constitution.