
The Obama Administration Has Embraced Legal Theories Broader Than John Yoo's - hackuser
https://www.justsecurity.org/30460/obama-administration-embraced-legal-theories-broader-john-yoos/
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awinter-py
I was really hoping that barack would be the con-law president. If uchicago
hasn't moved down in the rankings because their prof. emeritus is so bad at
'rule of law in practice', there's something wrong with the ranking system.

It's shocking to hear a guy who was a professional legal theorist argue that
something is legal based on the fact that he ordered the DOJ to write a memo.

~~~
Agustus
I wish more university rankings would have the results of their students held
against them. An exit test of abilities, logic, and knowledge would be a great
ranking system.

Additionally, when Presidents claim to be constitution law focused and fail in
almost all of the concepts of following the constitution, the professors have
failed and the department should be redacted down, similar to the division
system in soccer.

~~~
wavefunction
Perhaps one should consider if a "constitutional scholar" is the perfect
candidate to dismantle the Constitution bit by bit rather than someone who
holds true to whatever your definitions of "Constitutional" are.

I'll admit I voted for the guy the first time, but I was hoping for some
significant differences in what we ended up with. Partially the fault of the
obstructionist opposing party as well.

~~~
Agustus
When he was elected, I was happy, perhaps he could enact the changes that
needed to be made to reign in some of the spying, ridiculous defense
contracts, and other items. I based this on the "not red or blue country"
speech at the DNC convention. That hope passed quickly when he made the "I
won" comment to the Republicans instead of just assuaging or listening to
their now valid concerns.

I would argue that the obstructionism during the first two years should not be
considered a factor based on the make-up of the Congress. The Democrat
congress and President would have been able to hold the majority if they had
not stirred up the hornet's nest of populism from the right through the
healthcare act fiasco. Had he just focused on creating jobs, winding the war
in Iraq and Afghanistan to a manageable level of involvement, and proselytized
about family being important, we would not be having Trump running for office
today.

~~~
setpatchaddress
Obama made clear as early as the 2008 primaries that he wasn't going to be
very good on civil liberties. (But he didn't have to be this bad.)

What valid concerns did Republicans have during the past eight years? Do tell.
I've not heard of a single one.

Trump is the inevitable outcome of 50 years of racist, belligerent fear
mongering and bad-faith governance on the part of the Republicans. You can
draw a straight line from Nixon through Reagan through W. to get to Trump.
Obama had nothing to do with it.

~~~
ctlby
They're on point about his general lawlessness. It started with the Chrysler
bailout (almost as soon as he walked into office!), and it continues to this
day with e.g. the retroactive provisions in his latest anti-inversion
proposal.

> Trump is the inevitable outcome of 50 years of racist, belligerent fear
> mongering

Trump is the inevitable outcome of eight years of liberal grievance peddling.
His supporters are just trying to claim their share of the spoils of
victimhood.

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tootie
Eh. John Yoo advocated unlimited warrantless surveillance of even domestic
communication and he said torture was A-OK. As much as I don't like what Obama
is allowing here, I don't see how it's worse or even as bad as what Yoo pushed
for.

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matt_wulfeck
How it should be:

\- "Let's challenge these theories in the courts"

\- "the courts have decided that the application of the law is too broad and
we're going to add clearly defined limits so as to protect the rights of our
citizens"

How it is:

\- "the courts can not review or speak about what may or may not be a problem
because of FISA orders."

~~~
spathi_fwiffo
How it is:

\- Since our legal advisor claims that it is possibly legal, I will do the
thing. In the case that someone has grounds to challenge the thing, I will
face no penalty because I acted in good faith based on legal advice.

If a normal citizen tried that shit, they'd be rotting in jail.

~~~
bediger4000
I've been wondering about the "good faith" assumption that law enforcement,
and some other government employees get.

Is that just a by product of the courts and law enforcement basically being
two heads of the same beast or is there something else at work?

------
OliverJones
In the article, Mr. Toomey wrote this:

"The government assumes that any communication entering or leaving the country
has a foreigner on one end — and thus is eligible for warrantless searching.
As the new Brennan Center report makes clear, the implications of this
position are especially dire given the global structure of the Internet, where
even Americans’ domestic communications may be routed or stored abroad without
the parties to those communications even knowing. "

He's correct. This position is dire. It also works in reverse. Any
communication between two non-US residents that happens to transit the US is
also subject to surveillance. Given the way global packet networks function,
that means that almost any communication could be subject to surveillance
under this legal theory.

As US networking companies' foreign customers have understood, that's an
unacceptable -- and sometimes illegal -- risk. These policies haven't been
good for US network business.

And, pretty soon the NSA could have T. Cruz or D. Trump at the head of the
government they control.

Is there some reason the US security apparatus can't legislate in public? Is
there some reason they can't make the case "here's why we are trustworthy"?
They haven't even TRIED to make that case.

~~~
extra88
> Any communication between two non-US residents that happens to transit the
> US is also subject to surveillance.

Of course but we (USians) don't care, spying on everyone else is the NSA's
_job_ and every country does it. I'm more concerned about these issues than
the average USian but even I don't care much about applying things like the
4th Amendment to non-USians who are physically outside the country. Well, I
don't care about it from a justice perspective, I do care about possible
consequences like the Internet becoming balkanized.

> Is there some reason the US security apparatus can't legislate in public?

Why would they, how would it benefit them? Their answer would be that it's
critical that they keep secret their "sources and methods," so the bad guys
don't know what they're doing and also what they're not doing, whether it's
because they don't have the capability or they're legally restricted from
doing it.

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xnull2guest
Somehow people are just catching on to this. I was amazed and deeply
disappointed by the appointment of Cass Sunstein. He wrote a freaking book
entitled "The Problem of Free Speech" and actively justifies state
infiltration and 'providing direction' to online political discourse among the
US citizen base (among other things).

Though its not this administration either. The Bust Administration before it
drew up many broad interpretations of law, including the laws that have since
been used for censorship (first in "Free Speech Zones" but since at Occupy and
the media free zones around Ferguson).

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lasermike026
How do I short the US government?

~~~
marblar
Treasury bonds?

~~~
PhantomGremlin
Good one!

As I'm sure you know, good fucking luck shorting Treasuries. They've been in a
35 year long bull market. As Keynes noted oh so long ago, "The market can stay
irrational longer than you can stay solvent."

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tempodox
The textbook example of how bad cases (or pretexts?) make bad law.

