Can the Government Hide Its Misdeeds as ‘State Secrets’?

“State secrets privilege, as the doctrine is known, has a long and sketchy history, evolving from bad official behavior after a 1948 plane crash that killed several civilian observers. When the observers’ widows sued in United States v. Reynolds, the government argued that information about the plane was too super-secret to be revealed in court. The Supreme Court agreed that some things are too sensitive to be used in legal proceedings and gave the executive branch a free pass to invoke the phrase “national security” as a shield against accountability.
“Decades later, declassified documents revealed that the flight had no national security import at all and that Air Force officials had perjured themselves when they told the Court otherwise,” Reason’s Matt Welch observed in 2006. “In the meantime, the ruling provided the framework for executive privilege, which the Bush administration has been trying to expand.”

Not just the Bush administration appreciated state secrets privilege, of course; all presidents enjoy the ability to act without consequence. That’s how we end up all these years later with the question of whether the state secrets privilege is so broad that it can protect federal agents from the need to square spying on Americans with the protections afforded by the Constitution.”

“the government isn’t arguing just that some information is too sensitive for the public, but also that it should be kept from judges’ eyes. That would leave people with no recourse at all when federal agencies invoke the magic phrase “national security” to block lawsuits alleging rights violations.”

After 20 Years of Failure, Kill the TSA

“The TSA blog carries constant reports of weapons confiscated from people who forgot to remove them from carry-on bags. But the Homeland Security Red Teams in the 2015 test actively concealed forbidden items just as real criminals and terrorist would. The result was that “TSA agents failed 67 out of 70 tests, with Red Team members repeatedly able to get potential weapons through checkpoints.”

Two years later, a Red Team test at Minneapolis-St. Paul Airport achieved the same 95 percent failure rate to detect explosives, weapons, and illegal drugs. Repeat national tests in 2017 also went badly, “in the ballpark” of an 80 percent failure rate.”

There’s a Big Gap in Our Cyber Defenses. Here’s How to Close It.

“The foreign hackers behind the massive cybersecurity failures dominating recent headlines had one critical strategy in common — they leased computers in the United States to burrow into their victim’s networks. Because U.S. cybersecurity systems don’t regard domestic connections as inherently suspect, the attackers were able to hide in plain sight. Like secretive investors deploying a series of shell companies and trusts to mask true ownership, Russia, China and other sophisticated nations effect cyber-maliciousness through a series of intermediary, innocuous-looking internet servers.”

“No government agency — even our powerful spy agencies — currently has a sufficiently agile legal authority to catch foreign cyber malefactors in the act of co-opting U.S. computer networks. The National Security Agency is allowed to surveil only foreign actors; pursuing them on the home front is the job of the FBI. But by the time the NSA notices suspicious foreign activity and hands the case off to the FBI, it’s often too late. The foreign malware might well have been injected into American networks, and the FBI investigation simply confirms that now-dormant internet servers in the U.S. were used by foreigners to stage their attacks.”

“The difficulty lies in resolving deeply felt concerns over any increase in government surveillance authority, no matter how important the purpose. We are also paralyzed by a sense of fatalism that cyber vulnerabilities are simply the price we pay for being online, and an erroneous belief that the Constitution stands in the way of any solution.
Most cybersecurity experts agree an effective public-private cyber information-sharing system is essential in stopping foreign cyber maliciousness before it causes too much damage. But information sharing isn’t enough; it would be hamstrung from the start if the government cannot seamlessly and quickly track malicious cyber activity from its foreign source to its intended domestic victims. If some government agency had that legal power, then it could, for example, quickly check out a domestic IP address after an alert from the NSA that the address was communicating with a suspicious overseas server. If that IP address showed questionable activity, the government and the private sector jointly could take steps to reconfigure firewalls or otherwise curtail the hack. Admittedly, this wouldn’t prevent hacks and attacks that were based on previously unknown software bugs (so called zero-day exploits). But the reality is that most large-scale hacks by foreign countries rely on already known software imperfections and hardware deficiencies.”

We don’t need a separate cybersecurity agency

“we don’t need a new agency that will disrupt and distract a system that has many of the pieces it needs to succeed already in place. What we do need is better coordination, accountability and leadership to make sure that the federal government’s existing cyber expertise, assets and partners are engaged at maximum capacity to address the many varied and variable threats that will continue to emerge from cyber space.”