Your Honor,

just the notes I had prepared for this reply were considerably longer. In the interest of brevity (and sanity) I discarded the previous text entirely and am presenting this rather abridged response. I didn't respond to every assertion of the Counsel because in most cases it would amount to just repeating things I had already stated previously.

The above, in combination with various other obligations, led to the delay.

Addressing your request from August 5:

• If Ever Wandering Souls is being proscribed, the assumption is that he is being hostile. In fact, Items B through E set out to support the determination of hostility. Was there then a purpose to Item A, which you claim merely establishes that there was hostility in the first place?

For legal purposes, no. As mentioned in my reply on August 3, Item A is intended to show hostility in the colloquial (rather than legal) sense for rhetorical purposes.

• You are requested to produce as evidence the full contents of the conversation between Ever Wandering Souls and Imkitopia, as referenced in both parties' testimonies.

This was done on August 16.

• Does the Cabinet consider the West Pacific to be a partner?

No. The militaries of the South Pacific and the West Pacific have, on occasion, worked together on interregional operations, but for the most part, the two regions don't interact much.

• You are requested to clarify, for the record of this case, the exact reasons why the West Pacific and the East Pacific blacklisted The Black Hawks, with reference to the role that Ever Wandering Souls had in these blacklistings.

The Black Hawks had issued this statement in response to the blacklistings, which includes a log of a conversation between officials of The Black Hawks and the two regions.

In reference to the East Pacific, the above log establishes that Petitioner was bullying TEP's Minister of Foreign Affairs regarding a Hawk-led military occupation that was liberated with the help of the East Pacific Sovereign Army. According to Delegate Queen Yuno, Petitioner 'threatened a "nonthreat"', while Minister of Foreign Affairs Greyghost clearly says "we don't be bullied".

In reference to The West Pacific, the log mentioned above has Big Bad Badger, former Delegate of The West Pacific, saying that Petitioner was accusing The West Pacific of not being professional about a military situation; The West Pacific disagreed with that assessment and therefore stepped back its involvement with The Black Hawks. There is also this item from the NSGP Discord server:

[9:12 PM] Davelands: @glen-rhodes In http://tspforums.xyz/thread-6362.html
Please change "Is the singular reason why TWP proscribed his entire region,... " to "Is a reason why TWP temporarily proscribed his entire region,... " That would more correctly explain our position regarding Souls.

While the above quote doesn't state why, it clearly establishes that Petitioner had a role in the blacklistings.

• There is a very clear difference between "blackmail" and "bullying". Does the Cabinet intend to amend the reasoning for its proscriptions after the fact, as was just attempted with the phrasing of Item D?

The proscriptions will be reissued with more detailed reasoning and any errors amended, pending the outcome of this appeal.

• You are requested to provide, through private means, the unredacted contents of the evidence that supports Item E, for their consideration by the Court.

This was done on August 16.

---

In response to Counsel Mall's assertions on August 3:

How is a conversation between Ever Wandering Souls and Imki confidential and thus not subject to open disclosure to this court if the conversation is between Imki and the person who the Cabinet is refusing to disclose it to?

The issue isn't that Petitioner receives the conversation, but rather that it originated from private conversation and Imki herself has only cleared it to be shared with Cabinet, not publicly.

What is the legal effect of the Cabinet admitting in its above answer that it accused Ever Wandering Souls of not only a crime in this region (blackmail), but also of a frankly disgusting OOC action only to admit that it was lying?

There was no accusation of OOC action. Any OOC actions are dealt with administratively, not through IC legal means.

---

In response to Counsel Malashaan's assertions on August 16:

II. Appellant Should Be Given Access to Pertinent Evidence and Information
A. The Cabinet Must Explain the Basis on Which the Evidence is Classified

The classification of this evidence was not done by the Cabinet, but rather by the Intelligence Coordinator. The Cabinet had no role in the procurement or classification of this evidence.

B. The Evidence the Cabinet is Relying Upon Must Be Made Available

Petitioner's counsel should be aware that this isn't a criminal trial with a defined prosecution and defense, but rather an appeal in a non-adversarial setting. There is, therefore, no inherent right granted to cross-examine any evidence. The Court has received the full evidence as well as commentary on its sensitive nature, which is sufficient for it to derive a fair ruling.

Article 8, Section 2 of the Judicial Act only mandates that the Court works with the corresponding authority (in this case, the Intelligence Coordinator) to redact information that may harm regional security. The integrity of intelligence and counter-intelligence operations is intuitively important for maintaining regional security, and in some cases that integrity can't be maintained if any release of evidence is done at all, no matter how redacted. This is the case here. That doesn't mean such evidence can't be submitted (that would be absurd), it just means that when not reasonably possible, the court can accept confidential evidence even if no redacted form is published.

IV. The Proscription and the Cabinet's Defense of it Rely on Several Erroneous Assertions of Fact
C. Appellant was not the Singular Reason why The East Pacific Proscribed The Black Hawks

As shown above, it was Petitioner's conversation with The East Pacific's Minister of Foreign Affairs that led to the blacklisting. This directly contradicts the Counsel's assertion.

Reply

Your Honor,

I will briefly address (really this time) counsel's comments below.

 

• Does the Cabinet consider the West Pacific to be a partner?
  

 

No. The militaries of the South Pacific and the West Pacific have, on occasion, worked together on interregional operations, but for the most part, the two regions don't interact much.    

This simply highlights that item C is irrelevant. If TWP is not an ally or partner of TSP, whatever reasons it did or did not have for proscribing TBH are irrelevant to the question of whether the Cabinet's proscription of Petitioner met the required standard under TSP law.

 

• You are requested to clarify, for the record of this case, the exact reasons why the West Pacific and the East Pacific blacklisted The Black Hawks, with reference to the role that Ever Wandering Souls had in these blacklistings.
  

 

The Black Hawks had issued this statement in response to the blacklistings, which includes a log of a conversation between officials of The Black Hawks and the two regions.

In reference to the East Pacific, the above log establishes that Petitioner was bullying TEP's Minister of Foreign Affairs regarding a Hawk-led military occupation that was liberated with the help of the East Pacific Sovereign Army. According to Delegate Queen Yuno, Petitioner 'threatened a "nonthreat"', while Minister of Foreign Affairs Greyghost clearly says "we don't be bullied".      

The Cabinet's interpretation of these logs is a stretch at best:

• As noted by counsel, the quote is "we won't be bullied." The pronoun "we" is plural (unless one is the Queen of England). The quote does not support a conclusion that an individual was bullied. Let alone the specified individual.
  
• A statement that a group won't be bullied does not prove that the group was actually bullied. At most, the quote supports the conclusion that one person believed bullying took place. Without the underlying messages that are being discussed, it is impossible to determine whether actual bullying took place.
  
• The quote is ambiguous as to who was doing the alleged bullying. Was it Petitioner's personal actions or the action of TBH as a whole? Without more context, this is impossible to determine.
  

In short, the logs do not support the conclusion the Cabinet draws from them.

In reference to The West Pacific, the log mentioned above has Big Bad Badger, former Delegate of The West Pacific, saying that Petitioner was accusing The West Pacific of not being professional about a military situation; The West Pacific disagreed with that assessment and therefore stepped back its involvement with The Black Hawks. There is also this item from the NSGP Discord server:

[9:12 PM] Davelands: @glen-rhodes In http://tspforums.xyz/thread-6362.html
Please change "Is the singular reason why TWP proscribed his entire region,... " to "Is a reason why TWP temporarily proscribed his entire region,... " That would more correctly explain our position regarding Souls.

While the above quote doesn't state why, it clearly establishes that Petitioner had a role in the blacklistings.

I will address the specific details of this below, but for now I will just note again that TWP's reasons for proscribing TBH are irrelevant to the legal question of whether Petitioner's proscription in TSP was compliant with TSP law.

 

• There is a very clear difference between "blackmail" and "bullying". Does the Cabinet intend to amend the reasoning for its proscriptions after the fact, as was just attempted with the phrasing of Item D?
  

 

The proscriptions will be reissued with more detailed reasoning and any errors amended, pending the outcome of this appeal.      

The Cabinet's report demonstrates that a belief that blackmail had occurred was a factor in the decision to proscribe Petitioner. The fact that the Cabinet now concedes this was a factual error is reason alone to reverse that decision. A conclusion based on statements of facts established to be false cannot be considered sound.

In response to Counsel Mall's assertions on August 3:

How is a conversation between Ever Wandering Souls and Imki confidential and thus not subject to open disclosure to this court if the conversation is between Imki and the person who the Cabinet is refusing to disclose it to?

The issue isn't that Petitioner receives the conversation, but rather that it originated from private conversation and Imki herself has only cleared it to be shared with Cabinet, not publicly.      

What the party to a conversation has or has not cleared is irrelevant to the legal evidentiary question. There are certainly moral and ethical considerations, and possibly diplomatic ones, but that is the Cabinet's problem to address. Prosecutors face this question in courts every day - does the value of of evidence to a case outweigh the potential harm of presenting it? The Cabinet here has a simple choice, present the evidence as required by law or decide to not use it based on concerns about the consequences - either is a valid choice.

In response to Counsel Malashaan's assertions on August 16:

II. Appellant Should Be Given Access to Pertinent Evidence and InformationA. The Cabinet Must Explain the Basis on Which the Evidence is Classified

The classification of this evidence was not done by the Cabinet, but rather by the Intelligence Coordinator. The Cabinet had no role in the procurement or classification of this evidence.      

Petitioner is well aware that the Intelligence coordinator is responsible for the gathering and classification of evidence. However, it is the Cabinet that is relying on alleged classification to avoid presenting evidence in court. Petitioner has raised genuine questions as to whether the evidence in question meets the legal definition of classified intelligence. Article VIII, Section 1 of the Judicial Act makes submission in open court the default for all evidence. The burden is on the Cabinet to prove it is entitled to the exception it claims.

B. The Evidence the Cabinet is Relying Upon Must Be Made Available

Petitioner's counsel should be aware that this isn't a criminal trial with a defined prosecution and defense, but rather an appeal in a non-adversarial setting. There is, therefore, no inherent right granted to cross-examine any evidence. The Court has received the full evidence as well as commentary on its sensitive nature, which is sufficient for it to derive a fair ruling.      

The distinction the Cabinet is trying to draw between criminal trials and other cases in this Court is not consistent with TSP law. The Judicial Act establishes that, "by default, material submitted for a case shall be submitted alongside the case proceedings in a public venue." (Judicial Act, Article VIII, Section 1 (emphasis added)). The Chief Justice established in his opening remarks that this case will be treated as a Legal Question. " A legal question is a case containing one or more questions seeking to receive clarification on the meaning of existing law or the applicability of law to concrete or hypothetical situations." (Judicial Act, article IV, Section 1 (emphasis added)). In other words, this is a case and material submitted for the case is public by default. Unless an exception applies (and, as I established in my brief, no exception exists that justifies a complete lack of public disclosure), the evidence the Cabinet is relying on must be submitted in public.

Furthermore, even were this case treated as an Appeal under the Judicial Act, it would still be "a case." (Judicial Act, Article VII, Section 1 (defining an appeal as a case)). The Judicial Act simply does not distinguish between types of cases for evidentiary matters. The rules laid out in article VIII apply in all judicial proceedings.

Article 8, Section 2 of the Judicial Act only mandates that the Court works with the corresponding authority (in this case, the Intelligence Coordinator) to redact information that may harm regional security. The integrity of intelligence and counter-intelligence operations is intuitively important for maintaining regional security, and in some cases that integrity can't be maintained if any release of evidence is done at all, no matter how redacted. This is the case here. That doesn't mean such evidence can't be submitted (that would be absurd), it just means that when not reasonably possible, the court can accept confidential evidence even if no redacted form is published.

The Cabinet is trying to write an exception into the law that isn't there. The South Pacific legislature is more than capable of writing an exception into the law that allows for certain evidence to be considered confidentially by the Court. In fact, it did just that with the exception for material of a personal nature. That exception states "Material that is of a personal nature ... may be provided to the Court on a confidential basis, and published in a redacted form only if a reasonable person could not deduce the identity being protected." (Judicial Act, Article VIII, Section 3). In other words, with personal information, the Court can review confidentially and has discretion to to publish a redacted version if it concludes it can do so without revealing the identity of the individual.

In contrast, the exception for confidential information that the Cabinet is relying on is narrower. It requires the Court to work with the corresponding authority to redact information that may harm regional security, but does not allow for confidential consideration or for complete non-publication. (Judicial Act, Article VIII, Section 2).

The Cabinet asserts that it would be ludicrous to conclude that evidence cannot be submitted if the government does not wish it to be made public (even in redacted form). However, that is simply not the case. This is another classic case of the balancing act that occurs with using sensitive intelligence. The Cabinet is faced with a choice between retaining the complete secrecy of the intelligence and trading some of that secrecy for the evidence it provides in this case. I have been involved in many such decisions in several regions, and it can be a difficult one, but it is by no means a ludicrous setup. Rather, it implicitly is present in the Judicial Act as written. It is just one of many examples of the difficult balance between transparency, openness, and due process on the one hand and efficiency of governance on the other.

IV. The Proscription and the Cabinet's Defense of it Rely on Several Erroneous Assertions of FactC. Appellant was not the Singular Reason why The East Pacific Proscribed The Black Hawks

As shown above, it was Petitioner's conversation with The East Pacific's Minister of Foreign Affairs that led to the blacklisting. This directly contradicts the Counsel's assertion.       

The evidence does not contradict my assertion, either directly or otherwise. My assertion was that Appellant/Petitioner was not the "singular reason" for TEP's proscription. TEP's announcement provides several reasons for the proscription. As soon as there is more than one reason for something, none of those things are the "singular reason."

NOTE: Edited to fix a broken quote and correct a couple of typos.

(This post was last modified: 08-21-2018, 02:15 PM by Malashaan.)

Reply

This is a notice of intent that I will file a brief in response to Section II of Malashaan’s brief, no later than 5:00pm tonight, in my capacity as Intelligence Coordinator.

Reply

Your Honor, and may it please the Court,

I am filing this brief on behalf of my own office as Intelligence Coordinator of the Council on Regional Security, in response to Part II of Appellant’s August 15 brief. I will respond in equal parts to sub-sections A and B of the brief.

I. Response to Sub-Part A

A. Appellant is making elementary errors of statutory construction

Appellant argues that the Cabinet must “provide an explanation of the classification system in place and how it was applied to each piece of purportedly classified evidence,” lest the Appellant be denied fair justice to defend themselves against their duly-ordered proscription. In doing so, Appellant makes elementary errors in statutory construction, and ignores the legislative history of the office of the Intelligence Coordinator.

Article IX, Section 13 of the Charter states:

13. The Council on Regional Security shall designate an individual as Intelligence Coordinator, who must be notified of and approve all intelligence and counter-intelligence operations. The Intelligence Coordinator will be responsible for disseminating any and all intelligence to the Council on Regional Security and other bodies as needed. The Intelligence Coordinator and the Minister of Military Affairs will maintain a regional intelligence classification system, as necessary for the ensuring information security.

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. 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.

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.

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.

The classification system using by the Intelligence Coordinator is not publicly documented, as it is part of our tradecraft. Speaking in generalizations, all intelligence produced by a duly-approved mission is classified by default for the eyes of the Intelligence Coordinator only. Intelligence is then disseminated to others as the Intelligence Coordinator deems necessary, as authorized by Section 13. In this instance, the intelligence operation related to the Appellant was approved, and the intelligence it delivered has been classified appropriately for an ongoing mission. It has been disseminated to the Prime Minister and the bench of the High Court. As an ongoing intelligence mission, public dissemination could imperil our information avenue, and broad dissemination is not yet ripe. This is my official finding as the Intelligence Coordinator of the Council on Regional Security. I have cooperated with the Court, with the understanding that the intelligence would not be improperly revealed.

II. Response to Sub-Part B

Appellant argues that Appellant’s counsel should be allowed to review the intelligence, that the intelligence must be published in redacted form, or else must be “considered inadmissible and not considered.” These are unreasonable requests and Appellant mistakes this hearing for a criminal trial.

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.

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.

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.

Reply

Your Honor,

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

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.

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.

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.

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."

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.

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.

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.

Reply

I will be responding the above this evening, again in my capacity as Intelligence Coordinator.


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Determination on the admissibility of in camera evidence

Having heard the legal arguments presented by petitioner's counsel, by Cabinet's counsel, and by the Intelligence Coordinator, The High Court has reached the following conclusions in regards to the admissibility of in camera evidence.

The High Court is of the considered opinion that the relevant law in this matter is Article VIII of the Judicial Act, which reads as follows;
 
Article 8: Confidentiality

(1) By default, material submitted for a case shall be submitted alongside the case proceedings in a public venue.

(2) Material that is confidential and may harm regional security may be submitted to the Court, provided that the Court works with the corresponding authority to redact the information that may harm regional security.

(3) Material that is of a personal nature, such as as that which reveals personally identifiable information or which would otherwise unreasonably violate personal privacy, may be provided to the Court on a confidential basis, and published in a redacted form only if a reasonable person could not deduce the identity being protected.
These clauses cannot be read individually, but must be considered as a collectivity and in sequential order. Thus clause two, which deals with the submission and redaction of confidential material, must be considered in relation to clause one.

Clause one establishes that the default procedure for the submission of material is for it to be provided in a public venue. By establishing a default procedure of submission - that is to say, a standard procedure - clause one provides an implicit authorisation for non-standard procedures of submission. These non-standard procedures are then detailed in clauses two and three.

Clause two establishes the non-standard procedure for material "that is confidential and may harm regional security". The wording of this makes clear that the confidentiality and potential for harm are explicitly linked; material submitted under clause two must be both confidential and of potential harm to regional security. 

It may be logically deduced that the purpose of redaction is to remove any information that may harm regional security; this information must remain confidential, whilst information that is not of potential harm to regional security must be provided in a public venue. The determination of what constitutes harm to regional security is left entirely to the best judgement of the Court, as is the determination of the nature and extent of redaction.

The wording of clause two is imprecise as to exactly how this material may be submitted to the Court, but it does require cooperation between the Court and the "corresponding authority to redact the information that may harm regional security"; in this case, the Intelligence Coordinator. It is the opinion of the Court that this explicitly authorises in camera consideration of the submitted material by the Court, as without such there would be no means of making the required determinations.

Participation in this in camera consideration is implicitly limited to the Court and the corresponding authority; no outside party may participate or have access to the un-redacted material. In this particular case Cabinet's counsel has had access to the un-redacted material; this stems from the fact that said material was provided to the Cabinet by the Intelligence Coordinator, and forms the basis of the proscription of the petitioner. Cabinet's counsel has not had access to the the in camera consideration of the submitted material, nor has any other party outside of the Court and the corresponding authority. The participation of the corresponding authority has been limited to the provision of the submitted material; all discussions of the material and it's potential redaction have occurred solely within the Court, between Chief Justice Kringalia and Associate Justice Belschaft.

The Court has examined the submitted material in detail, and has considered the level of redaction that would be necessary to prevent harm to regional security. As the submitted material constitutes evidence provided by an extant and active source, anything that could allow this source to be identified would harm regional security. The Court thus has considered ways by which the source could be identified from the submitted material, and has concluded that the only way to prevent such identification is by the complete and total redaction of the submitted material.

As the public release of this redacted version of the submitted material would take the form of a blank document, the Court has determined that no such release will be ordered. The Court is bound to order the release of the un-redacted submitted material; in a situation where there is no un-redacted submitted material, there is nothing to release. Whilst ordering the release of a blank document may be required under the strictest possible reading of the law, it would also be absurd, and the Court is not in the practice of giving absurd instructions.
 

Belschaft
Associate Justice

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Reply

The Court clarifies that the above determination refers to the evidence provided by the Cabinet’s counsel in support of the assertion that Ever Wandering Souls sought to overthrow the Coalition of the South Pacific, against whose release the Intelligence Coordinator argued. It does not refer to other pieces of evidence.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
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(This post was last modified: 08-27-2018, 10:50 AM by Kris Kringle.)

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Your honor,

In view of the evidentiary ruling above, I will make a few supplemental comments regarding the other legal questions in this case. I want to take a moment to thank the Court for recognizing that TSP laws requires evidence to be presented in open court where it determines that redaction will be sufficient to protect regional security. I am obviously disappointed that I remain unaware of what my client is alleged to have done that might justify a finding of hostility, but I appreciate the efforts made by the Court.

The evidentiary finding highlights the importance of Section IV through VI of my initial brief, and in particular Section V. Without the ability to review the evidence the Cabinet used in reaching its conclusions, the requirement from the proscription act of "a report detailing the hostile acts" gains extra importance.  The report becomes the only avenue for Petitioner to determine what the Cabinet is accusing him of having done. If the Cabinet's report had included even some details of a particular act alleged to be hostile, we would at least have some starting point from which to formulate a response. But the purported report does little more than repeat parts of the definition of hostile acts and refer in conclusory fashion to "sensitive intelligence."  Petitioner can only assume that the Cabinet has logs that are either inaccurate or out context, but has no way of demonstrating the error.

This makes it practically impossible for the Court to fulfill its role as a reviewing body. As a party referenced and/or participating in the conversation(s) shown in the classified logs, Petitioner is uniquely situated to identify inaccuracies and/or provide context. The Court cannot effectively substitute for Petitioner in this regard.

To give an absurd example, I generated the following fake log yesterday that appears to show Roavin plotting with Souls to coup TSP with the knowledge of the Chief Justice:


This took me five minutes and, other than the word "Fake" I scrawled on it out of an abundance of caution, it appears genuine. The avatars and usernames are correct, it's a screenshot from Discord, there is no image editing that might leave traces, or any other indicators that could be used by a third party to establish that it is false. Maybe in this example, the proposition is so ludicrous one might assume it is fake, but with minimal additional time and individuals with less developed trust with the Court, it would be easy to be misled.

I am not arguing that the logs the Court has seen are fake. Rather, that any logs cannot be trusted blindly if the person they are being used against cannot review them, challenge their accuracy, or explain a wider context. Even a single omitted or added word may vastly change how a log is interpreted.

Turning to this particular case, this is particularly pertinent. I demonstrated in Section IV of my initial brief that several of the facts asserted by the Cabinet in justifying its decision were erroneous. The Cabinet has since admitted to some of these inaccuracies. Similarly, in Section VI, I demonstrated that the remaining factual assertions were irrelevant to the legal question of whether Petitioner's proscription was valid. What we are left with is a proscription premised entirely on secret logs for which veracity cannot be adequately tested. The one person who could provide insight on inaccuracies or lack of context, Petitioner, has been excluded from reviewing them or even given a general sense of what actions the Cabinet believes support his proscription. Put another way, given the number of factual and legal errors Petitioner has demonstrated in the evidence and arguments that were provided in public, how can this Court (or anyone else) have faith that the classified evidence and its mapping to the required elements of the Proscription Act may be relied upon?

In closing, I'd like to reiterate that a finding of hostility under Article I, Section 1 requires Petitioner to have been involved or complicit in an attempt to illegally overthrow the government. Mere statements of desire to see regime change are not sufficient. Even discussion of thinking about acting is not sufficient. There must have actually been an attempt to overthrow the government and Petitioner must have been involved or complicit in that attempt.  Similarly, under Article I, Sections 3 and 4, there must have been an attempt at coordinated espionage and an attempt to sabotage military operations, respectively. I addressed these points in detail in my initial brief and will just add that Petitioner is confident he has not any of these things, and if anything resembling an explanation for how the Cabinet concluded otherwise was provided, he could demonstrate his actions do not raise to the level of hostile acts as defined by law.

Reply

Determination on the Admissibility of In Camera Evidence

Recently the Court reached a determination that certain in camera evidence related to the present case should remain classified and redacted to the fullest extent, rendering its review by the appellant impossible. A request for the public disclosure of an additional piece of evidence has been received. Following a process of internal discussion, the Court has decided as follows.

Cabinet’s Counsel indicated in a prior testimony that the logs of the conversation between Ever Wandering Souls and Imkitopia, used to justify Item #2 of the Determination of Hostility, is classified. Pursuant to that declaration, both Cabinet’s Counsel and Appellant’s Counsel submitted their copies of the aforementioned logs to the Court by means of private messages.

Since then, the Court has had an opportunity to review the logs and evaluate whether they contain information that would damage regional interests or security, therefore justifying their continued classification, or any level of redaction.

These logs show private discussions between officials from two separate regions; they provide valuable context to the assertions made by the Cabinet and the Appellant. While common practice is to keep such discussions between officials private, so future discussions can be held with candor, the Court finds that no sensitive information is pretend in these logs that could cause damage the security of the region, or affect its interests.

In view of this finding, and pursuant to Article 8 of the Judicial Act, the Court authorises both parties to this case to freely disclose, cite and discuss the full contents of those portions of the conversation between Ever Wandering Souls and Imkitopia that were previously submitted in camera.

It is the intention of the Court to further clarify that neither the disclosure of in camera evidence, nor the decision to withhold its release, constitute any indication of the value of the evidence in question, or of the likelihood that they will strengthen or weaken the argument made by any given party to a case.

It is so ordered.

Former Delegate of the South Pacific
Posts outside High Court venues should be taken as those of any other legislator.
I do not participate in the regional server, but I am happy to talk through instant messaging or on the forum.

Legal Resources:
THE MATT-DUCK Law Archive | Mavenu Diplomatic Archive | Rules of the High Court | Case Submission System | Online Rulings Consultation System

(This post was last modified: 08-29-2018, 07:13 PM by Kris Kringle.)

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