Category: Government Secrecy


CJRA Records Before 1998?

Though open government is a priority of the administration, the court system is taking a decidedly different, slower, path.  Here’s one example.  I’d like to collect the CJRA Reports from the Southern District of New York from 1992-1998, when Judge Sotomayor was sitting on that bench. Those Reports would tell us how many motions “pending” Judge Sotomayor had at six month intervals — i.e., how efficient & quick she was in dispensing justice.  Unlike reversal rates, measures of activism based on hierarchical standards,  and citation studies, CJRA motion  statistics would shed light on Judge Sotomayor’s time as a district court judge, and also have the virtue of being easy to translate for the public.  Some judges allow motions to sit on their dockets. Others don’t.  (Discounting for the first year or two on the bench, as many new judges are given a biased set of cases by their colleagues – the dogs of the other judges’ dockets.)

Unfortunately, PACER records CJRA information from 1998 onward, and I can’t seem to figure out where (online or off) the old reports are housed.

Any ideas?


Terrorist Watchlist, Troubling Flaws Revealed

Last week, I wrote about how crude algorithms in the name-matching “No Fly” system produce an outsize number of false positives as a matter of deliberate policy.  We are willing to tolerate additional delays so that we can stop terrorists from flying.  Yesterday, the DOJ’s Office of the Inspector General issued a report that seriously calls into question the bargain that we have struck with regard to the “No Fly” system.  The report explains that the FBI (the agency amassing the list that is then matched to travelers’ names) has incorrectly kept 24,000 names on the terrorist watch list on the basis of outdated and irrelevant information, while “missing people with genuine ties to terrorism who s120px-021101-n-0780f-0041hould have been on the list.”  According to the report, these mistakes not only posed a risk to national security due to the failure to flag actual terrorist suspects, but also created unnecessary delays and detentions for innocent travelers.  A fact of great concern: the Inspector General sampled 216 FBI terrorism investigations and found that in 15% of them, a total of 35 subjects were not referred to the list even though they should have been.

During a talk that I gave last week for Princeton University’s Center on Information Technology Policy, Ed Felten (who served on TSA’s Secure Flight Study Group where he studied the No-Fly mechanism) explained that there are two aspects to the no-fly list, one that puts names on the list and the other that checks airline reservations against the list.  The two parts operate separately from each other.  The FBI heads up the first part, putting names on the list through a secret process that seemingly requires that people on the list be a sufficiently serious threat to aviation security.  The other part is the one that I wrote about last week: a data-matching system that checks travelers’ names against the list.  Because the matching algorithm requires only an approximate match (because flight reservations so often have misspelled names), we have many false positives so that we can sweep within the system the right match, i.e., the terrorist suspect, along with many innocent others.

So here is the rub: we are willing to live with so many false positives because we trust those amassing the list to ensure that it is accurate and complete.  In other words, it worth all of those false positives if indeed they serve the greater good.  Yes, we will endure the delay and perhaps inability to fly if indeed our names are akin to someone’s who is correctly suspected to be a terrorist.  But preventing innocent individuals from flying, or subjecting them to questioning, based on matches with other innocent people’s names while failing to do enough homework so that you let real terrorist subjects board airplanes with no hassle?  Really?  This report suggests reconsidering having a “No Fly” system in its current form at all.

Thanks to Wikimedia Commons for the picture


Reining In Executive Power: Proposed State Secrets Legislation

1074578_its_a_secret_.jpgOver the past 56 years, the Executive Branch has enjoyed a seemingly unchecked right to shut down litigation in the name of “state secrets.” The landmark 1953 case that gave vitality to the “state secrets” privilege was United States v. Reynolds. In that case, three widows sued the government after their husbands died in the crash of a U.S. Air Force aircraft that they had help engineer. During discovery, the government refused to produce the Air Force accident report and statements of crew survivors to plaintiffs or even the judge for in camera inspection. The trial court and the Third Circuit found that the government could not unilaterally decide what it could withhold as permitting it to do so would eliminate the independent judiciary’s important check on government. The Supreme Court in Reynolds disagreed, finding that the government had the right to withhold evidence from private parties when disclosure, according to the government, would endanger national security. In the wake of Reynolds, judges tend to dismiss private lawsuits as soon as the government asserts the “state secrets” privilege. The Bush Administration frequently invoked the “state secrets” privilege, most notably in cases challenging the constitutionality of its national security programs including the warrantless wiretapping, rendition, and interrogation programs.

Yet, as two recent books (both elegantly written and carefully developed, see here and here) demonstrate, Reynolds stands on troubling ground: the Air Force report (released in 1996) contained no secrets but did attest to the Air Force’s negligent conduct. This ignominious history illustrates the great danger of giving the Executive Branch unchecked power to invoke the state secrets privilege: it can be, and has been, used for the sole purpose of concealing government misconduct or carelessness.

Responding to this concern, Senate Judiciary Committee members last week unveiled the State Secrets Protection Act, a bill that would help check the misuse of the “state secrets” privilege. As Chairman Patrick Leahy explained, the bill endeavors to “guide courts to balance the government’s interest in secrecy with accountability and the rights of citizens to seek judicial redress.” The bill would provide a uniform set of procedures for federal courts considering claims of the state secrets privilege, such as in camera hearings and special masters. It would require judges to look at the evidence that the government claims is privileged, rather than relying solely on government affidavits as courts have increasingly been wont to do. The Committee report explains that the bill addresses the crisis of legitimacy surrounding the privilege by setting forth clear rules that take into account national security and the Constitution. Although the privilege had an ignominious beginning, this bill would work to secure for it a more reputable life.