Your Honor,

To address the Intelligence Coordinator's points, I submit the following remarks.

(08-23-2018, 05:27 PM)sandaoguo Wrote: Appellant is incorrect when they state “any designation of intelligence as classified must … be necessary for information security.” This is a basic error of statutory construction, with Appellant also altering the wording of the law to better fit their end goal. The law states that the government will maintain a classification system, “as necessary for the ensuring information security” (sic). This is not the same meaning as saying the government will maintain a classification system, and any classification must only be made when it is necessary for information security. The meaning of “as necessary” when used in a future tense sentence means “as the need may arise.”

So, the law is saying that the Intelligence Coordinator and the Minister of Military Affairs will maintain a classification system, as the need arises for one in order to ensure information security. This is a far cry from the supposed legal requirement that intelligence be classified “only as necessary for ensuring information security.” The clause applies solely to the creation of a classification system, not as an individualized criterion when deciding which intelligence deserves classification.

I will take this opportunity to clarify this Court. In an effort to be concise, my earlier brief did not provide an ideal representation of Petitioner's position on this issue. The Intelligence Coordinator is correct to note that the law does not require that every instance of classification is necessary for information security. My intent was to express that the "as necessary" requirement is a condition that limits the system that is put in place, not individual decisions made under that system. I apologize to the Court for my poor word choice.

To further clarify, the sentence in question is the only mention of classification in the Charter. The previous two sentences establish that the Intelligence Coordinator is responsible for authorizing intelligence operations and disseminating intelligence to other bodies as needed. The sentence in question both provides the legal authority to the Intelligence Coordinator and the Minister of Military Affairs to set up a classification system and provides a legal requirement to do so, in the words of the Intelligence Coordinator, "as the need may arise."

This direction to set up a system for classification implicitly requires that any information that is classified is do designated according to that system. To conclude otherwise would make the whole sentence a nullity: information could be classified outside of the system, rendering the existence of the system and any requirements it imparted moot. Put another way, the principle of expressio unius est exclusio alterius demonstrates that the provision in law for the creation of a classification system precludes information from being classified outside of that system.

In this context, the limitation "as necessary for the ensuring information security" is a limitation on the grant of authority to the Intelligence Coordinator and the Minister of Military Affairs. They have the authority to create the system, but that authority only extends as far as is necessary to ensure information security.

Applied specifically to this case, if the evidence in question is classified, it must be pursuant to whatever classification system is in place. Furthermore, that classification system in place must not go further than is necessary to ensure information security. While it is certainly possible that a particular piece of intelligence that need not itself be classified to ensure information security could still be classified under a valid system, that should be a rare occurrence. If a large amount of information for which classification is not necessary is nevertheless being classified, this is strong evidence that the system as a whole goes beyond what is necessary, and hence beyond the authority granted under the Charter.

All Petitioner is asking in Section II.A of his brief is that the Cabinet demonstrate that the evidence it is asserting is classified meets the legal requirements for that status. If the Cabinet is not required to do so, it would equate to a system where any information the Cabinet wishes to exclude from the default rule of public submission can be excluded simply asserting it is classified, no matter how ludicrous that assertion may be, because there would be no requirement to prove it and no recourse for anyone to challenge it. That is simply not the system set up by the Charter and the Judicial Act.

(08-23-2018, 05:27 PM)sandaoguo Wrote: By default, any mission approved by the Intelligence Coordinator is classified. That is what intelligence is—if it is not classified, then it’s not intelligence. It’s just public information. Appellant is simply on a fishing expedition to get the Court to force the declassification of sensitive intelligence, in the hopes that they can find and close whatever avenues TSP’s intelligence operations have in acquiring intelligence on them.

This assertion by the Intelligence Coordinator improperly conflates the concepts of intelligence and classification. Intelligence is a broad class of information of military or political value collected by the government. The fact that "classified intelligence" exists as a compound noun is precisely because not all intelligence is classified. Rather, the classification system determines what intelligence should be considered classified. If all intelligence were classified, there would be no such thing as classified intelligence; there would just be intelligence.

Furthermore, the Intelligence Coordinator's assertion that "That is what intelligence is—if it is not classified, then it’s not intelligence. It’s just public information." is a non-sequitur. Just because information is not classified, it is not necessarily public either. Classification provides a legal protection that makes disclosure of the information a crime, but behavioral protections are also available (and effective). For example, if the Intelligence Coordinator were passed information, he can prevent it being public information by simply not telling anyone. It matters not whether that information is classified or not, it is still secret.

Finally, the Intelligence Coordinator characterizes this position as a "fishing expedition." However, in making this argument (in contrast the argument addressed below), Petitioner did not seek access to the evidence in question. Rather, Petitioner requested that the Cabinet demonstrate to the satisfaction of the Court that it's assertion that the evidence is classified is justified.

(08-23-2018, 05:27 PM)sandaoguo Wrote: Furthermore, Appellant erroneously creates a legislative history that does not exist. The Assembly did not pass and subsequently amend Section 13 to add language “in the interests of transparency and open government.” In fact, the legislative history shows just the opposite. The office of the Intelligence Coordinator was created in response to a lack of organization and security operations (sec-ops, as it is commonly called) under inadequate constitutional language. The creation of the Intelligence Coordinator was rooted in idea that “the more people who know … the harder it is to keep secret.” (http://tspforums.xyz/thread-4954-post-15...#pid151378) The subsequent amendment about the creation of a classification system was borne from my own frustration with there being no clear guidance on who decides levels of classification, not a frustration our intelligence organization wasn’t transparent enough.

As a threshold matter, I note that the Intelligence Coordinator is primarily addressing a single remark regarding the purpose of one sentence rather that the legal substance of that requirement. I also note that it was the Cabinet that first raised the proposition that Petitioner is entitled to "a fair and open review" in its opening arguments. My remark would be better viewed as stating that the legal effect of the limitations on classification is improved transparency and openness.

That said, to address the substance of the Intelligence Coordinator's comment, the linked post regarding the origins of the Intelligence Coordinator position are irrelevant. The quoted language was not included in the version of the law being discussed at that time. Rather, as he implicitly acknowledges, it was added via amendment over two months later. In advocating for that amendment, the Intelligence Coordinator stated "I don't have any specific ideas on classification at the moment, but we currently consider some things classified and some not, and at varying degrees. I think it would be a good idea to put that down in writing, particularly who decides levels of classification." (see here). A clear consequence of having a legally mandated system in writing rather than operating in a "free for all " environment is that it provides standards that must be met. If those standards aren't met, it is well within the authority of this Court to take action. More generally, the impact of requiring classification to be performed according to a system is inherently increased transparency. Information cannot be suppressed merely on a whim; rather, it can only be restricted according to the pre-specified system. If the amount of information that is subject to classification is reduced, transparency increases.

(08-23-2018, 05:27 PM)sandaoguo Wrote: B. The Cabinet has no role in security intelligence operations

Appellant demands that the Cabinet produce an “explanation of the classification system in place.” This is an improper request that the Cabinet cannot possibly fulfill. Intelligence in TSP is separated into two spheres: military intelligence on basic raiding/defending missions, and the much broader world of security intelligence. The Cabinet’s role in the first is limited to whatever system the Minister of Military Affairs has created and is nonexistent in the second. Security intelligence is the purview of the Council on Regional Security, specifically the Intelligence Coordinator. That is the delineation of TSP’s classification system agreed to subsequent to the passing of the relevant amendment.

I believe I have already addressed this, but for completeness, the Intelligence Coordinator's assertion here misses the point. The Cabinet is the entity asserting that the evidence is classified to justify its non-disclosure. The onus therefore falls on the Cabinet to demonstrate it is entitled to make that assertion. It has every right to defer to the Intelligence Coordinator and rely on his expertise, and I would expect it to do so, but it is the Cabinet asserting that it need not submit the evidence it is relying upon publicly, not the Intelligence Coordinator.

Ultimately, Petitioner does not care who provides the required evidence and testimony. Petitioner merely requests that the Court establish that the evidence in question meets the legal requirements of being "classified intelligence."

(08-23-2018, 05:27 PM)sandaoguo Wrote: The Court has been supplied with the intelligence for in camera review, in unredacted form. The redacted form of the intelligence, pursuant to the requirement that information that may harm regional security must be redacted, would be a black page. The intelligence is from an ongoing mission, and by definition that mission would be imperiled by granting Appellant access to any form of the intelligence. The Court can make this determination with ease, and it would be challenging for it to argue how the intelligence may be given in any form to the Appellant without endangering the integrity of intelligence and counter-intelligence operations. Again, I must ring the alarm bell that Appellant is on a fishing expedition to uncover the avenues of intelligence used to obtain the evidence the proscription is based upon. If for procedural fidelity Appellant continues to demand a redacted copy of the intelligence, and the Court agrees, I will be obliged to do so of course. But I do not imagine the copy would be illuminating.

Procedurally, the law is clear. The Court must "work with the corresponding authority to redact the information that may harm regional security." This is not on a fishing expedition. I simply wish to establish what the basis of the Cabinet's decision was to meaningfully assert Petitioner's legal right to challenge the finding of hostility in court. It seems highly improbable that whatever evidence the Cabinet is relying on cannot be redacted in such a way that at least informs me what actions taken by Petitioner it considers to be hostile acts. The right to challenge the finding of hostility quickly becomes illusory if the petitioner cannot even determine what he or she is alleged to have done.

(08-23-2018, 05:27 PM)sandaoguo Wrote: Furthermore, Appellant erroneously is treating this proceeding as a criminal trial. The Court cannot declare “evidence” in any way “inadmissible,” because this is an appeal of the Cabinet’s determination of hostility. The Court is an inquisitive, not adversarial, body and thus it is Court’s duty to review the determination of hostility. It is not the Appellant’s role to play defendant, nor to use American-style criminal trial procedures to transform this appeal into a trial with cross-examination.

I am going to address this again because these theme arose in the Cabinet's response as well and it is contrary to TSP law. Prior to March 15, 2018, this argument might have held some merit. Under the Court Procedures Act, there were separate bodies of procedural law for criminal trials and legal questions. Under that regime, the Cabinet and Intelligence Coordinator would have been correct; the evidentiary rules applied only to criminal trials. However, in March this year, the Court Procedures Act was repealed and replaced with the new Judicial Act, which is the law currently in place.

In the Judicial Act, procedural matters are primarily addressed in Articles III and VIII. These sections draw no distinction between criminal cases, legal question cases, or any other type of case. The evidentiary rules apply equally across all of them.

(08-23-2018, 05:27 PM)sandaoguo Wrote: If the Proscription Act intended trial procedures, it would say so. What it provides for instead is a judicial review, wherein the Court analyzes the veracity of the evidence and either says the evidence supports a conclusion of hostility or that it does not. Importantly, what the Proscription Act does not intend is for the Court to replace the Cabinet’s determination of the severity of hostility with the Justices’ own opinions. The question asked in this appeal is: did the Cabinet proscribe Ever-Wandering Souls based on evidence that shows, at minimum, they performed an act within Article 1? The Proscription Act does not place the Court in the role of an issuing authority, but merely a reviewing body to ensure that proscriptions are based on evidence and not simply the prejudices of politics. 

The Intelligence Coordinator's argument here is moot. The Court has already determined that this case is being treated as a legal question. Under the Judicial Act, the Requirements of Article XIII regarding evidence apply in legal question cases. Ergo, at a minimum, redacted copies of all the evidence the Cabinet wishes to Court to consider must be provided.

Furthermore, even were the argument were not moot, the Intelligence Coordinator's conclusion does not follow from his premise. The Proscription Act was passed after the Judicial Act and granted individual's identified as hostile a right to review by this Court. As rightly noted by the Intelligence Coordinator, the Proscription Act is silent on procedures. Given that the Judicial Act already existed at that time and defined default procedures for the Court, including the evidentiary rules in Article XIII, the legislature should have expressly overruled those default procedures in the Proscription Act if it wished to do so. In other words, the lack of defined procedures in the Proscription Act does not indicate that no procedures should apply, rather, it indicates that the existing procedures in the Judicial Act apply.