NYTimes Sues The Federal Government For Refusing To Reveal Its Secret Interpretation Of The PATRIOT Act

from the secret-laws-and-secret-interpretations dept

Mon, Oct 10th 2011 11:36am — Mike Masnick

We've been covering for a while now how Senators Ron Wyden and Mark Udall have been very concerned over the secret interpretation the feds have of one piece of the PATRIOT Act. They've been trying to pressure the government into publicly explaining how they interpret the law, because they believe that it directly contrasts how most of the public (and many elected officials) believe the feds are interpreting the law. While the two Senators continue to put pressure on the feds and to hint at the feds' interpretation, just the fact that the government won't even explain its own interpretation of the law seems ridiculous.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government's interpretation of its own law... and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it's interpreting its own law? That's not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here's hoping the court systems don't let them. No matter what you think of this administration (or the last one) and how it's handling the threat of terrorism, I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.

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Filed Under: charlie savage, doj, extension, freedom of information, mark udall, oversight, patriot act, ron wyden, secret interpretation, wiretaps

73 Comments

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ChurchHatesTucker (profile), 10 Oct 2011 @ 11:41am

Huh
Turns out there is an excuse for ignorance of the law.
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Rikuo (profile), 10 Oct 2011 @ 11:44am

So...will the government start having hidden interpretations of other laws now? Will someone be dragged up before a court, only for the defence lawyer to say "Your Honor, the defendant should be let go, because the government doesn't even tell us what is and is not illegal anymore. How can someone be guilty of breaking a law if the law itself cannot be divulged?"
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DandonTRJ (profile), 10 Oct 2011 @ 11:45am

I, for one, am happy to see that Dilbert strips apply equally to bumbling businesses and our federal government.
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Anonymous Coward, 10 Oct 2011 @ 11:49am

Re:
http://en.wikipedia.org/wiki/The_Trial

Holy shit, Batman!
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Dan (profile), 10 Oct 2011 @ 11:52am

Consttutional issue
I'm surprised no one has brought up a constitutional issue since the interpretation of law falls under the judicial branch.
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Anonymous Coward, 10 Oct 2011 @ 11:58am

Re: Re:
is that the one where William Shatner overcomes his fears and insecurities to help free the young black man accused of murdering a white farmer?
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Rikuo (profile), 10 Oct 2011 @ 12:09pm

Re: Re: Re:
I hope you're being sarcastic but what you're thinking about is To Kill A Mockingbird, where a white lawyer, Atticus Finch, defends a black man accused of raping a white girl. Atticus points out that the prosecution has produced literally no evidence, but the black man is found guilty anyway.
And no, William Shatner wasn't involved in any way. The film adapation starred Gregory Peck as Finch.
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Anonymous Coward, 10 Oct 2011 @ 12:31pm

Re: Consttutional issue
Ever since Bush said and acted as if the Constitution is just a "damn piece of paper", everyone in the Government seems to act like that now.
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Anonymous Coward, 10 Oct 2011 @ 12:34pm

Re: Re: Re: Re:
Sorry, but I don't watch any movies that don't involve William Shatner.
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weneedhelp (profile), 10 Oct 2011 @ 12:39pm

I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.
Thats terrorist talk. You must be one of them there alCIAda, homegrown terrorist types.
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Almost Anonymous (profile), 10 Oct 2011 @ 12:43pm

This is really good news
An individual, or even several people, could be fairly easily ignored. There's no way they can ignore a lawsuit, much less one brought by a large newspaper. I will definitely be watching this suit with interest.
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TheStupidOne, 10 Oct 2011 @ 12:47pm

Re: Huh
But that ignorance, however justified, doesn't excused you from being targeted and having every aspect of your life revealed to the feds.
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lucidrenegade (profile), 10 Oct 2011 @ 12:49pm

But.. but.. NATIONAL SECURITY!
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timmaguire42 (profile), 10 Oct 2011 @ 12:51pm

Re: Re:
I was thinking of The Gulag Archipelago. There's a section where Solzhenitsyn talks about the huge difference being a prisoner of the USSR vs. the United States, where you have the right to know what the law is. There was more to it than that, but "the law is a secret" is something he put clearly on the Stalin side of the ledger.
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anonymous, 10 Oct 2011 @ 12:59pm

basically, the feds want to move the goalposts to any distance they want, when they want so as to cover anything they want it to cover, when they want it covered. the 'land of the free' is way down the shitter now! welcome to yet another dictatorship! you know, the same dictatorships the USA fight wars to prevent and overcome!
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ECA (profile), 10 Oct 2011 @ 1:11pm

iTS ALL CHANGED
ignorance of the law is Mandatory..

I still find it fun that the laws for the poor, have no cognizance from those above. I was raised that ALL WAS EQUAL. and as an adult, I learned differently.
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out_of_the_blue, 10 Oct 2011 @ 1:12pm

"I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate."

Lots of non-sequitors and hyberbole, and maybe a a spotlight and gamblers fallacy for good measure. I will be back to show you in a bit.
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Anonymous Coward, 10 Oct 2011 @ 1:12pm

What Gives
Why all the complaining? Why doesn't everyone just do exactly as the State wants? Give away your freedoms for a little while. It is not that big of a deal. You still have football, beer, pharmacuticals, fatty foods, and more entertainment than you could possibly consume in your lives. Enjoy it and let those responsible people in power protect you from the enemy. I'm sure they will get rid of all the terrorists within ten years if we all just do what they ask us. Then they will hand us back our rights on a silver platter and it will be like the good ole days... only better.
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Anonymous Coward, 10 Oct 2011 @ 1:14pm

Re:
You'll be performing an interpretative dance?

SHIT, LET ME OUT OF HERE!
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dave blevins (profile), 10 Oct 2011 @ 1:17pm

Congress: just repeal ...
... all those laws that won't be revealed.
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Anonymous Coward, 10 Oct 2011 @ 1:29pm

If the Party could thrust its hand into the past and say this or that even, it never happened-that, surely, was more terrifying than mere torture and death."
- George Orwell, 1984, Book 1, Chapter 3
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Caliburn, 10 Oct 2011 @ 1:31pm

Great Interest.
I will be watching this case with great interest. Keep us updated, TechDirt.
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The Mighty Buzzard (profile), 10 Oct 2011 @ 1:32pm

Re:
I say let them keep it secret. That way I can claim that any action I take is perfectly legal under the government's interpretation of the PATRIOT act.
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Grae (profile), 10 Oct 2011 @ 1:34pm

Re:
"Non-sequitors! Hyperbole! Buzzwords! Oh, you want an actual argument? Uh... uh... brb!"
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out_of_the_blue, 10 Oct 2011 @ 1:36pm

Re: Everyone sign in as "out_of_the_blue"!
Won't bother me (the original), I can always pick another common phrase or "go full AC"! It's you regulars with fixed handles that you're attached to who won't like the spread of that trick. -- Nor will Mike like it.

By the way, if came to it, I've a rare if not unique browser header, always give the same email address, and so on. Only one who can spoof me is Mike, or someone he informs.
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kryptonianjorel (profile), 10 Oct 2011 @ 1:42pm

Re: Re: Re:
Someone is shooting for funniest comment of the week
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Amgine, 10 Oct 2011 @ 1:50pm

Re: hidden interpretations of other laws?
The assumption is they do not already have hidden interpretations.
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Joe, 10 Oct 2011 @ 2:29pm

I refuse to divulge how I interpret this story.
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Anonymous Coward, 10 Oct 2011 @ 3:24pm

Is there a lawyer in the house?
I know this request was made previously, but it seems to have been derailed.

So seriously- I'm curious how the feds rationalize the legality of a 'secret law'. The very concept seems so completely at odds with a representative government that I'm at a loss to speculate even a laughable argument, much less something with that might make some kind of sense.

Can someone help with this?
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from glory to self destruction, 10 Oct 2011 @ 4:50pm

The interpretation will remain secret simply because it's not in their best interested to divulge it, they are bending the rules to get certain allowances in what they are allowed to 'lawfully' act upon, if the public knew, there would be an outcry as it almost certainly affects your pre-conceived rights
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Beta (profile), 10 Oct 2011 @ 5:44pm

Not that it matters, but...
Technically, according to the letter of the law -- and I know the letter of the law isn't winning many fights against the government these days--, things may be classified "Secret" (or above) if their exposure would cause serious harm to the security of the nation.

Just think what that secret interpretation must look like to pass that threshold...
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lucidrenegade (profile), 10 Oct 2011 @ 5:47pm

Re: Re: Everyone sign in as "out_of_the_blue"!
Want a cookie?
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Anonymous Coward, 10 Oct 2011 @ 7:11pm

Re:
Those who would trade a little liberty for a little security will deserve neither, and lose both. -- Benjamin Franklin

In a nation where the government serves The People, what does it say about the government that it regards those People as the enemy that secrets must be kept from?

Does that make the federal government the much sworn about but rarely seen domestic enemy of the Constitution?
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Bergman (profile), 10 Oct 2011 @ 7:24pm

Re: Re:
And the Anonymous post above my reply here is actually me, but somehow my saved sign in lapsed without notifying me, until after I hit post. Oh well.
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Anonymous Coward, 10 Oct 2011 @ 7:59pm

Since when does the government have to reveal how it interprets statutes in a FOIA request? We're talking about the Executive Branch, right? I just don't see the fire, Mike.
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Anonymous Coward, 10 Oct 2011 @ 8:35pm

Re: Is there a lawyer in the house?
Because terrorism.
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Rekrul, 10 Oct 2011 @ 9:24pm

The government's interpretation of the PATRIOT Act is that they're allowed to do whatever the hell they want to do and then cover it up by claiming "national security".
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Kevin (profile), 10 Oct 2011 @ 9:39pm

Re:
One problem. If Amir al-Awlaki is any precedent, then these cases don't end up in the courts.
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TravisO, 10 Oct 2011 @ 10:20pm

Re: What Gives
9/11 happened more than ten years ago, where are my rights?
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Bill Michtom, 10 Oct 2011 @ 10:28pm

will the government start having hidden interpretations of other laws now?
You're way too late for that question. It's been going on for years.
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Any Mouse (profile), 10 Oct 2011 @ 10:43pm

Re: Re: Re: Everyone sign in as "out_of_the_blue"!
You'll have to charge him for it so he isn't some lowlife freetard.
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Spodula, 10 Oct 2011 @ 11:26pm

A but there is another point...
The feds have said this is classified, which means it is restricted to certain people.

As we dont know what level of classification that implies, It could mean that even knowing the law could be against the law for some people.

I look forward to them arguing about *that* in court.
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Historian, 11 Oct 2011 @ 7:49am

We've moved to a pre-Roman understanding of law. Great.
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xenomancer (profile), 11 Oct 2011 @ 8:09am

Re: Re:
That reminds me of "The Rock" when the captain in the shower room gives his "foreign, sir, and domestic" speech... right before being shot up. The irony is that his fake death was still more poignant than the slow decay of our constitution, which is just sad. Its like watching a train run over an old lady's legs at 1 mile per year.
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xenomancer (profile), 11 Oct 2011 @ 8:11am

Re: Re: Re: Everyone sign in as "out_of_the_blue"!
I don't think his browser has room... maybe a fig newton, but no more than two. /brian-regan
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Anon, 11 Oct 2011 @ 8:38am

The Patriot Act is meant for the American people not terrorist that is its' "secret" interpretation. To be used against the law abiding citizenry; how many constitutional rights are null and void due to the Patriot Act? Their is nothing Patriotic about it...
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meddle (profile), 11 Oct 2011 @ 11:11am

If I needed a reason to subscribe to the times
this is it
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S, 11 Oct 2011 @ 11:35am

Re: Huh
So cute, so na�ve.
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S, 11 Oct 2011 @ 11:43am

Re: A but there is another point...
http://en.wikipedia.org/wiki/Paranoia_%28role-playing_game%29#Setting
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Anonymous Coward, 11 Oct 2011 @ 1:15pm

Any idea that we live in a representative republic has just died, we now live under rule of an authoritarian police state.
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Anonymous Coward, 11 Oct 2011 @ 4:26pm

Here is an example of a news organization doing what it should. Makes me want to buy a paper
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oinoi, 11 Oct 2011 @ 4:41pm

SAME OLD SAME OLD TYRANNY

LAND OF THE FREE?

WHOEVER TOLD YOU THAT IS YOUR ENEMY! (ratm)
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Anonymous Coward, 11 Oct 2011 @ 6:37pm

We don't live in a democracy
We live in a representative republic elected by democratic means...
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pedro mohr, 11 Oct 2011 @ 9:25pm

Re: What Gives
Hopefully you say this with tongue in cheek and not serious because it is not reasonable .
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simon, 11 Oct 2011 @ 9:33pm

nyt sues fed
There are hierarchies of law. Put simply, there is Natural Law (like gravity), Common or Criminal law, then the laws of Contract or Equity.

A law is not and cannot be valid if it contravenes a higher law. ie a contract law is not valid law if it contravenes a criminal law. And a criminal law cannot be valid law if it contravenes a Natural law.

The usually given example of this is a law that cannot possibly be conformed to.

If a government has an interpretation of a law yet refuses to give that interpretation to its citizens then that law is, by that fact alone, invalid as it cannot possibly be conformed to.

This is a straight-forward no-brainer. Unfortunately you (We) have a government that has no regard for law at all � At All! Except as a vehicle to achieve its aims or avoid sanction, whenever and wherever it suits.

It wages undeclared war, yet uses the invalid excuse of 'rules of war' to murder its own citizens without due process, kills civilians to achieve its goals as a matter of course, invents the non-existent label of 'illegal combatant' to more easily enable torture of whomever it wants - with or without reason let alone due process, and corruptly pillages the people and the nation and the world for its own benefit and the benefit of those who remain in the shadows and actually pull its strings. And on and on and on ....

"It's a Republic Madam. If you can keep it".

Well obviously you (We) couldn't. Your (Our) choices are now either submission, or Lawful Rebellion. And I'll remind you that in law not making a choice is a choice. It's acceptance, or submission.
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WhoDatMan, 12 Oct 2011 @ 2:22am

Re: Re: Re: Re:
Rikuo, you see ONE movie with a black character and that's your go-to anytime someone mentions a book with a black character? Rape and killing a farmer are two very different things, at least in my experience and Atticus Finch didn't go through the kind of internal struggle described in the OTHER movie with a black character.
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Anonymous Coward, 12 Oct 2011 @ 7:44am

Re: Congress: just repeal ...
And who put those laws into place? Who has been supporting and extending them for ten years?

Congress has.
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Vic Livingston, 12 Oct 2011 @ 11:18am

NYT Ignores Pleas from Victims of USG Extrajudicial Persecution
Charlie Savage and other mainstream journalists, please read my reporting, much of it based on personal experience, exposing a nationwide fusion center- based Gestapo like organization that is extrajudicially persecuting and electromagnetically assauling thousands of Americans and their families, who are deemed by ideologues and hate-mongers at all levels of government to be "dissidents," undesirables, or mentally ill. I can't get the NYT to pay attention, apparently due in part to a slander campaign by men in black.
http://nowpublic.com/world/u-s-silently-tortures-americans-cell-tower-microwave-weapon
http ://nowpublic.com/world/thugocracy-u-s-fed-police-vigilantes-persecute-citizen-targets
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Anonymous Coward, 12 Oct 2011 @ 6:08pm

Re:
Yes.
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Larry Dodge, 12 Oct 2011 @ 11:30pm

democracy, republics, and juries
I'm not the least surprised that the Feds are resisting giving an explanation of one or more parts of the Patriot Act. Democracy has never been a guarantor of freedom of any kind, certainly not of freedom of information. Democracy means majority rule, not freedom. And majority rule can mean oppression of minorities, which is why some cynics define it as "two wolves and a sheep voting on what's for lunch."

If it's freedom we desire, we have to get back to what the Founding Fathers really wanted: a republic. A republic is a country where the leaders are held accountable by the citizenry. The only institution in the American system of government designed to do that was the citizen jury, which has the inherent right to judge both the law and the facts of a case. Since 1894, juries have been systematically misled on this issue, told nowadays they must apply the law as given by the court, like it or not.

The Founding Fathers would turn over in their graves if they heard such a perversion of their intent. They knew that any form of government, unless the laws it passed were subject to citizen review and rejection, would ultimately become tyrannical. As Thomas Jefferson put it, "I consider trial by jury as the only anchor yet devised by man by which a government can be held to the principles of its constitution."

Up until 1894, judges would routinely tell jurors of their power and duty to judge both law and fact. But the decision in Sparf and Hansen, 1894, was that yes, jurors always do have this power, but the court has no obligation to tell them about it. Since then, the political function of the jury has been lost to us, and with it the possibility of reviving citizen control of government.

When Benjamin Franklin was asked by a woman, just after the Constitutional Convention in Philadelphia, what sort of government the new nation was to have, he said, "A republic, madam--if you can keep it."

We've lost it, and the atrocity known as the Patriot Act, its publicly available and secret elements alike, is proof positive.
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Hephaestus (profile), 13 Oct 2011 @ 9:15am

Re: Re:
That took me a second to get my head around.
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Sylvie, 14 Oct 2011 @ 2:24am

Re: Congress: just repeal ...
If they don't reveal, we MUST appeal! catchy, no?
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Sylvie, 14 Oct 2011 @ 2:27am

Re: Re: Congress: just repeal ...
oops...it should have been "If they don't reveal we must REPEAL" I'm sure appealing to them would get us nothing but laughed at.
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Sylvie, 14 Oct 2011 @ 2:38am

Re:
The Patriot Act was ALWAYS meant to be used against American citizens. It was written BEFORE the 9/11 attacks (It is a book 4 inches thick and came out a week after the 9/11 and nobody writes, edits, prints and distributes that fast). Their agenda was more control over the people. It was a solution in search of a problem to solve. They needed something scary enough that the people would beg to be saved from by any means. Then out of the blue (or not) came the 9/11 attacks, terrorism, Osama Bin Laden,etc.; Mission Accomplished.
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Sylvie, 14 Oct 2011 @ 2:43am

Re: We don't live in a democracy
"elected by democratic means" Sometimes, but not always, like when the election is close and one candidate's brother is governor of a large state and decides to stop counting votes once the family member is ahead in the count (leaving 10s of thousands of votes uncounted and the win margin is less than a few thousand).
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Sylvie, 14 Oct 2011 @ 2:46am

Re: nyt sues fed
Well said, Simon!
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once upon a thyme (profile), 14 Oct 2011 @ 6:50pm

Re: nyt sues fed
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."
from the Declaration of Independence

these words tell us everything we need to do.
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Moose12 (profile), 16 Oct 2011 @ 2:56am

Re: Re:patriot act
And the government/law enforcement will charge you that "ignorence of the law is no excuse."
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Moose12 (profile), 16 Oct 2011 @ 3:34am

The Patriot Act
The Patriot Act is the KY Lubricant for the insertation of the Presidential Execuitive Orders. The content of these Orders become effective upon a declared state of emergency by.....who else.....The President!! Much of the success of the PA relies now and will continue to rely on....who else....Homeland Security! A peaceful end to the rights and freedoms of Americans is only a goal;not a necessity. Too much unrest, demonstration, protest, civil unrest of any kind and guess what......YOU GOT IT!! A declared state of emergency, which could activate....why of course....The Presidential Execuitive Orders. Say it isn't so FEDS!! Tell us all about the Patriot Act. Why is it such a big secret??
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isBubba, 19 Oct 2011 @ 1:22pm

Re: Consttutional issue
@Dan - It *IS* the Justice Department that is refusing
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Bert, 20 Oct 2011 @ 8:43am

FOIA Refused
Unfortunately we the people lose either way; on the hand our taxes pay out for a lawsuit unless the suit is for specific compliance (to reveal only, no money sought). On the other we just sit back and suck on it; a government that is out of the control of those whom they work for, makes up do want they want law, and hit you with them when you did not even know it was law. Solve this by firing those who actually made the refusal decision, Consider criminal charges; Sue them personally without immunity.
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Shemsuhor, 26 Oct 2011 @ 5:23pm

No secret here. Just read Hitler's Enabling act...
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hdmi, 8 Dec 2011 @ 11:38pm

Somebody needs to hold their feet to the fire on this!
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