[jbapple]

What constitutes a "secret arrest", as mentioned in this article? Jose Padilla was arrested and initially held without notice to his family or attorney. Is that what this arrest is like? What proportion of the arrests in the US are "secret"? When the families of the prisoners are told, are they sometimes bound by court orders not to disclose the arrests?

[matt_wulfeck]

I also wondered about that. Why would you "secretly" arrest anyone? And here I thought a critical component of due process is that we don't detain people without charging them with a crime, which is necessarily an open process.

But what do I know? I'm just a schmuck who happens to believe normal people can read and interpret the constitution on their own.

[dogma1138]

"Secret" arrests are fairly common, they are often used daily when you need to arrest a large group of people without them scattering.

Say you have 5 arrests warrants for members of a gang, you often can't arrest them all the once so here is where the "secret" comes into play when they are arrested and the arrest is maintained confidential for 24-48 hours depending on the jurisdiction.

This is done to prevent the rest from scattering into hiding as soon as the news of one or more of them getting arrested breaks, this also means they won't hold down somewhere and be ready for a fight, or even go and do something worse like take hostages in order to try to get out of dodge.

This also means that in some rights are withheld for the duration of the "gag order" like access to a phone or an attorney, however the police is not allowed to question or formally charge the subjects during that period either, so while there is some violation of rights it is not egregious.

[jbapple]

This arrest happened in late August, it seems. Has SCOTUS set limits on how long prisoners can be held secretly?

[dogma1138]

Criminal justice gags are usually hours to days depending on the case.

The longer ones are usually to protect the arrestee if they are being put into protective custody / witness protection or are released as an informant.

Since this is national security related who knows, I don't even know if these cases have been brought up to the supreme court before.

[pjlegato]

Yes, unsurprisingly there is an enormous amount of case law on this topic.

https://en.wikipedia.org/wiki/Habeas_corpus_in_the_United_St...

[fredgrott]

if its a computer access break-in FED law states 90 days notice..while not directly applying it would seem if someone was caught on illegal access after 90 days FEDs would have to let both the criminal know and theri lawyer so arrest would no longer be secret at thatpoint.

[rconti]

I guess, then, the real question is, what is a "non-secret" arrest? Do the police/FBI routinely release public information in the case of every arrest?

[williamscales]

I think in a "non-secret" request you may contact an attorney or family member.

[vertex-four]

The Constitution is a piece of paper, and might influence certain parts of Government to some degree, the same as any other piece of paper. But the beliefs of the people are what really matters. And if the people don't actually entirely agree with the Constitution to the point that they're willing to fight for it and drag their representatives out of Government over it, it's as useless as any other piece of paper.

[micaksica]

+1. Nice philosophies and platitudes are not power, and it does otherwise smart people a disservice to their rationality to confuse the two.

A piece of paper and its surrounding political philosophy may empowering in theory but is decidedly not in practice. At the end of it all, it is the threat of adverse action, hopefully through re-election or worst-case through violence, that keeps power in check. The majority is too unwilling or too ignorant to oust those that are given the power to strictly enforce the philosophy, and thus the Constitution is emasculated.

[lettergram]

Have you ever tried to get a group of people to protest anything? Like seriously, the black lives matter are more effective, than people regarding the NSA, privacy, or encryption. Even though some of the stuff we know about the government is WAY scarier.

[bdavisx]

Not to downplay the NSA issues -- but it's a lot scarier for a black/brown person to realize their life can be ended when they get stopped for having a tail light out.

[lettergram]

I do agree that people will think that way, but it's actually not scarier. Giving the government the power it has, implies the government can basically do what ever it want. It has secret courts, secret arrests, and secret police. That is way more horrifying than the very small risk of being shot - which the numbers don't even fully support that it's getting worse, unjustified, or even preventable. I recommend the Through the Wormhole episode: are we all bigots?).

That being said, I do think we whould always be wary of police and generally question the government. It's important we keep into perspective what's actually a threat and whats just unfortunate. Both should be improved, but one (the NSA) can prevent any sort of improvement, the police shooting rate seems to be more of an over reaction and mistake that almost everyone agrees should be fixed.

https://www.washingtonpost.com/news/wonk/wp/2016/07/13/why-a...

http://www.sciencechannel.com/tv-shows/through-the-wormhole/...

[optimuspaul]

I don't think you can say what is scarier for another person.

[kbenson]

Yes. As these things go, every day existential threats generally trump threats to our liberty. I can't fault anyone for that.

[vertex-four]

The issue is more that there's an incredible amount of people who just don't care about the Constitution. Or pretty much anything else that isn't affecting them in a really direct way right that moment in time.

And so, in giving a democratic Government ridiculous amounts of power, we give it power to harm pretty much any minority it chooses, so long as it doesn't piss off too many other people.

[flubert]

I think you'll enjoy: The Myth of the Rule of Law...

http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm

[chx]

While it's great to harp on the inconsistency of the body of law, the importance of rule of law is how powerful people equally get prosecuted and sentenced and cases are not determined by who can pay a bigger bribe to the judge. Both happen in the negative in, say, Hungary.

[filoeleven]

> the importance of rule of law is how powerful people equally get prosecuted and sentenced and cases are not determined by who can pay a bigger bribe to the judge

But the law is not equally applied in the US, though it's more often here a case of being powerful than being rich. See how General Petraeus was treated (for retaining eight notebooks full of "highly sensitive information" and giving them to his biographer/paramour) compared to Stephen Kim (who discussed one classified report about North Korea with a reporter): the former was fined, the latter was jailed.[0]

Now, Kim has since been released due to the outcry over the disparity of the sentences, so in this case the subversion of the rule of law coupled with public pressure ended up working out. But that is not an inspiring system. It did little for instance to help Jeffrey Sterling[1] (charged with espionage, in part for doing something that sounds a lot like what Hillary Clinton did with her emails).

This is to say nothing of things that have gone the other way, such as a complete lack of prosecution for those behind the 2008 financial crisis, retroactive telecom immunity, etc. The message that this sends is, "The rule of law applies to you unless you are close enough or important enough to whoever is in power." Which is not really the rule of law at all.

[0]https://theintercept.com/2015/03/03/petraeus-plea-deal-revea...

[1]https://en.wikipedia.org/wiki/Jeffrey_Alexander_Sterling#Con...

[alasdair_]

Think of essentially any major US-based scandal in the last twenty years involving extremely powerful individuals (presidents, billionaires etc.). I think it is highly likely that in each case, the most powerful people managed to avoid prosecution and sentencing unless the people they harmed were even more powerful than themselves.

More importantly, these powerful people effectively write the laws themselves - why break a law when you can simply cause whatever action you wish to take to become legal?

Torturing prisoners? Crashing the world's financial system? Spying on millions of Americans without any kind of warrant? Lying about the spying to congress? All no problem! Just make up a law and get it passed, or if you forgot to do that, get retroactive immunity granted or just ask the President to pardon you directly.

The only thing that matters is how much power (influence, force, money etc.) you can bring to bear and who your opponents are. Law is irrelevant. To put it in plainer terms: people who own nuclear weapons don't have to pay their parking tickets.

[vertex-four]

I've read over that, and while I found the majority of the article interesting, I found the conclusion jarring. Especially as a true Marxist would agree with many of the ideas throughout the article, but come to an entirely different conclusion - that the solution to law being imposed on society isn't to allow people to choose which entity they'll allow to impose on them, but to allow society to directly create its own order.

Of course, just as you might look like the article's Socrates for suggesting free markets of law, you'd look even more like him for suggesting that maybe some issues are best resolved through means other than markets or monopolies.

[M_Grey]

Then you haven't been paying attention to legal precedents set since the late 70's, and think that you can hide behind a devalued piece of paper that courts and politicians and LEO's have been shitting on for decades.

[thaumasiotes]

> But what do I know? I'm just a schmuck who happens to believe normal people can read and interpret the constitution on their own.

To be fair, what if two people did that and disagreed?

[madaxe_again]

Deleted as I thought better than posting this retrospectively. Sorry.

[micaksica]

> Of course, from the outside it looks like he was just some Bad Man. Even the prime minister went on the news to condemn him.

This is a lot of obfuscation. What happened here? How did they smear him?

> From the external actions of the characters who oversee the legal professionals who are drafted into service in these secret systems, they definitely have their own, uh, interpretation of law and ethics.

I am friends with some ex-IC guys; from their stories they appear closed in rank more than police, and are indoctrinated to the point that they see themselves as the paladins of American values and democracy. In reality, they are usually only upholding the interests of the powerful, where corporate interest and political value coincide, and those with real power know and reinforce this. To see this is too much cognitive dissonance for the ones that aren't secretly there just because they get off on the power.

The paranoia and the power trip are good at reinforcing the "us vs. everyone" mentality that we know is pretty dangerous psychologically.

[sandworm101]

The procedure involves jailing someone under a false name, at least on the paperwork. It isn't that unusual and is normally used in organized crime cases. The arrest is done under the guise of arresting a "material witness" rather than an accused criminal. Doing this bypasses various protections (lawyers, hearings etc) for a significant period of time. The use of false names is to protect the "witness" from intimidation. The suspect is then re-arrested on criminal charges while in custody once the need to keep him secret is over.

An infamous case: https://en.wikipedia.org/wiki/Brandon_Mayfield

[elif]

It is legally an indefinite detention pending formal charges, but due to the nature of "indefinite," those charges never have to actually exist.

It performed under section 1021 of the original National Defense Authorization Act (NDAA 2012), which has been upheld as constitutional by an appellate court, a ruling which the supreme court declined to subsequently hear.

https://en.wikipedia.org/wiki/Hedges_v._Obama

[mikecb]

This is not a detention under the NDAA. This case has nothing to do with the NDAA. Further, Obama's signing statement of that law stated that his Administration believed such provision to be unnecessary and unconstitutional:

"Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law."

Hedges v. Obama did not affirm the constitutionality of that law, but rather that that plaintiff did not have a sufficient interest in that provision in order to ensure that they would present the best case that can be made, which is important because US Court's follow precedent. If you'd like to read more, look for the constitutional requirement of Standing.

[tptacek]

I'm guessing it just means the indictment is sealed, and maybe (but probably not) that the accused and their counsel are under some kind of gag order.

There's no statute or authority or even articles at ACLU or in law journals I can find that suggest that federal law enforcement can detain US citizens without counsel in "secret arrests", or, for that matter, suspend habeas.

Obviously: they can do that. But it's a very big deal when they do. They had to back off charges from Jose Padilla because of how they mishandled that case.

[joering2]

good start:

https://en.wikipedia.org/wiki/National_Defense_Authorization...

... under the NDAA "an American citizen can be detained forever without trial, while the allegations against you go uncontested because you have no right to see them"

[tptacek]

The 2012 NDAA policy you're citing requires the detainee to be a member of Al Qaeda.

[dragonwriter]

> The 2012 NDAA policy you're citing requires the detainee to be a member of Al Qaeda.

No, they don't either in principal (the application in the text is much broader than specifically al-Qaeda -- it includes al-Qaeda, the Taliban, "associated forces that are engaged in hostilities against the United States or its coalition partners", and other who commit a belligerent act against the US or its coalition partners that is seen to be "in aid to" those organizations), nor in practice, because the specific allegations justifying the detention need not be disclosed, nor even the specific detention publicly disclosed, and detentions under the act, while they permit trial by military tribunal, do not require any juridical process or access to counsel to be provided -- that's rather the point of indefinite detention -- there's essentially no practical boundary to their application (if some sympathetic third party becomes aware of the detention, its possible they might be the subject of habeas corpus proceedings, which would require some showing that there was reason to believe that the person was within the fairly broad scope in the text of the act, but that's by no means a certainty in any particular detention.)

[tptacek]

You're responding to me as if I'm justifying the indefinite detention clause of the NDAA. I am not. I am saying it does not apply here, and none of the additional color you've provided changes that --- that there are other parties named in current live AUMF's doesn't make this doofus contractor a member of one of them.

You might also look at Obama's signing statement of the NDAA for more evidence for that argument.

[dragonwriter]

> You're responding to me as if I'm justifying the indefinite detention clause of the NDAA. I am not.

No, I'm respodning to you as if you were making an inaccurate fact claim about the NDAA, which you were, whether you refer to what the act says on its face or, even moreso, what the practical result of the authority in the act is.

> I am saying it does not apply here

No, that's not what you said that I responded to. Had you said that, I would not have responded as I did. In any case, theft of secrets in aid of an enemy is a belligerent act, so (even if subsequent investigation ruled out that the acts were done in support of al-Qaeda), were the Administration to, in good faith, believe that the acts were carried out on behalf of or in aid of al-Qaeda, the act here would fall within the ambit of the bare text of the NDAA.

(It wouldn't fall within the requirements of PPD-14, but PPD-14 by its own terms addresses only executive policy on the applicability military custody requirement of Section 1022 of the NDAA, a requirement which applies to a subset of the population for which indefinite detention is authorized by Section 1021 of the NDAA.)

Note I am not saying that the administration treated this as a detention under the NDAA, merely that the concept that the NDAA could -- consistent with the text of the Act -- have been applied here is not at all farfetched.

[jonknee]

According to the complaint the search happened August 29th so this has been ongoing for a while. Very curious.