
The Laws you can't see - ghosh
http://mobile.nytimes.com/2013/07/09/opinion/the-laws-you-cant-see.html
======
javajosh
Reading this article it suddenly became clear: FISA _is_ an Executive Branch
agency that defends executive actions, much like the DoJ. In other words, it
_is_ the DoJ. When it (at least) comes to the 4th Amendment, the executive
branch has manipulated Section 215 of the Patriot managed to totally unchain
itself from the Constitution and do whatever it wants, in secret, from both
the public and the other branches of government.

The magnitude of this is stunning. Historically, the executive has unchained
itself for brief periods for specific issues. I do not know of any attempt to
unchain itself in perpetuity, and in secret.

The fact that anyone finds it the least defensible is even more stunning. I
mean, even if you are for mass surveillance (and there are many who
legitimately feel that way) surely you must be concerned that it was done
without your knowledge or consent.

There are two paths to solving this problem, both of which result in striking
down Section 215 of the Patriot Act: a court challenge (which the EFF is
spear-heading) and an act of Congress (which is very unlikely given the lack
of public awareness and uproar).

Personally, I would like to see an additional censure on Obama and all other
executive, legislative, and judicia officials who abrogated their duty to
protect the Constitution of the United States of America. It needs to be our
harshest censure, to send a message to future administrations that secret
coups will not be tolerated.

~~~
osth
Still the best article I've seen on this whole affair was the one at
foreigpolicy.com back on June 11:

[http://www.foreignpolicy.com/2012/06/11/to_protect_and_defen...](http://www.foreignpolicy.com/2012/06/11/to_protect_and_defend_obama_constitution)

The US actually tried to impeach a president for lying about a sexual
encounter with a White House intern yet does not seem to care much about a
president who despite teaching Constitutional Law (G.W. Bush was not even a
lawyer) does not appear to know his primary responsibility as president - to
protect and defend the Constitution - and proceeds to violate the sworn oath
of allegiance he took (twice) after being elected and reelected.

Do we really care more about presidents who lie about sex scandals than
presidents who violate their oath? Maybe we should change the oath to state "I
do solemnly swear that I will not have sexual encounters with any White House
staff." Under that oath, JFK would have been in clear violation.

The Constitution is far more important than any single president,
administration or election.

I guess there are still some folks who might still believe that there's really
been no obvious violations of the Constitution in the course of these
surveillance programs. But then why did so many senior lawyers at DOJ, even
the Attorney General himself, oppose and threaten to resign (or resign) over
these programs when they learned about them years ago? How many more lawyers
need to look at the facts and say, "Something is not right here," before we
all agree to get to work and fix it?

Bush Jr. too was at fault for what has taken place, but it's Obama who has
been fully caught out (thanks to Snowden). Why should Obama be excused for
this? The issue is not personal nor political (as it may have been with
Clinton... as if he was the first president ever to cheat and to lie); it is a
matter of protecting the Constitution. What higher calling is there for any
public servant? And while it's unfortunate the issue has come to the public
light during his term, this is much more important than Mr. Obama, his
presidency, his administration, or his legacy.

"Yes we scan." Time to stand down, my brother.

EDIT: added "www." to link

~~~
javajosh
> The Constitution is far more important than any single president,
> administration or election.

Yes.

Which makes me wonder about the motives of those who pushed for a broad
interpretation of section 215. As tempting as it is to think of them as power-
hungry, evildoers, I actually don't think that's the case.

There is a cultural movement away from self-restraint, that was nowhere
exhibited more freely and forcefully than by George W Bush. His example has
been copied in public and private, showing how powerless "the public" really
is when it comes to checking unethical, or even illegal behavior of the
powerful.

I think we all thought Obama represented a movement back toward self-restraint
as a virtue. And yet, time and again he shows himself to be even less
restrained than his predecessor - a failing that is all the more terrible for
being so very unexpected. The Obama administration should have actively
resisted a broad interpretation of 215, and indeed lobbied Congress to amend
the bill to avoid any possible loophole. That would have been restraint.
Instead, the Obama administration stretched the law to it's breaking point,
then did complex legal dances to give their power grab an air of legitimacy.

My heart is broken.

~~~
Domenic_S
"By the people, of the people, and for the people" is a description, not a
prescription.

Take a look around -- that movement away from self-restraint is evident
everywhere, in public and in private, in business and in government. You can
even see it in people's bodies, from eating too much to working out too much.

By the people: a description. If as a society we don't restrain ourselves, it
is not a great leap in logic to predict that government will do the same. We
are a society obsessed with loopholes & me-first attitudes and we glorify
rampant consumerism and pretty people that consume rampantly. Our companies
publicly claim to "do no evil" and privately do what they want.

The surprising truth should be that the government is a mirror on ourselves.
If we don't like the government, we have a much more sinister problem.

We have met the enemy, and he is us.

~~~
newbie12
It is a human condition to have endless wants. The genius of the American
experiment was that the Founders understood this, and created institutional
checks on the size and power of government-- after all, governments are made
up of people. The problem is that these institutional checks are crumbling
under the twin weight of the military industrial complex and the entitlement
state.

------
joering2
> the Foreign Intelligence Surveillance Court has for years been developing
> what is effectively a secret and unchallenged body of law on core Fourth
> Amendment issues, producing lengthy classified rulings based on the
> arguments of the federal government — the only party allowed in the
> courtroom

It is sad indeed, but perhaps every political system sooner or later becomes a
tyranny and dictatorship. It may be just a matter of time. If that's true then
we live in the most amazing timeline of humans' evolution, and we should all
appreciate it enormously.

~~~
rayiner
> It is sad indeed, but perhaps every political system sooner or later becomes
> a tyranny and dictatorship.

Uh, are we observing the same history here? The trend has distinctly been in
the other direction. I'm less afraid of the NSA circa 2013, than Hoover's FBI
from the middle of the 20th century, or McCarthy's Senate in the 1950's. The
British's Parliament has governed Britain with tremendous continuity for about
325 years now, and it has on the whole only become more democratic over that
time. The Soviet Union fell, East Germany fell. Brazil is ripe for democratic
reform. Even China probably won't be able to stave off democracy forever at
its current pace of development.

~~~
aetherson
While I agree with you that there has been lots of historical movement away
from tyranny, you'd be a fool to fear McCarthy's Senate of the 50's more than
the intelligence apparatus of today.

According to wikipedia:

"Between 1949 and 1954, a total of 109 investigations were carried out by
these and other committees of Congress."

[https://en.wikipedia.org/wiki/McCarthyism](https://en.wikipedia.org/wiki/McCarthyism)

The Hollywood blacklist at its height listed 300 people. Despite how high-
profile it was, these institutions touched microscopic handfuls of people, and
they were considerably more public and easy to oppose than the modern NSA.

Compare:

Modern NSA is pretty clearly keeping files on pretty much everyone. Hundreds
of millions of people, conservatively.

Number of people on terrorist watch lists: Unclear, anywhere from thousands to
millions.

Number of FISA warrants granted: In recent years, from a low of 1,300 (2009)
to a high of 1,700 (2012). Call it 6,000 in the period 2009-2012.

Number of people killed via drone strikes: 2,000 to 3,000.

You are VASTLY more likely to impacted by the modern surveillance state than
you ever were by the McCarthy investigations, and the government at least
holds out the possibility that they will assassinate you without due process,
which to my knowledge the McCarthy investigations never did.

I suspect that a similar scale argument holds with Hoover's FBI, though I
don't know how I would prove it.

~~~
griffordson
The 1950's intelligence community was no joke either. In fact, the CIA
probably played a very large role in bringing an end to McCarthyism.

See the following for an interesting tour through that slice of history:

[https://en.wikipedia.org/wiki/Operation_Mockingbird#Director...](https://en.wikipedia.org/wiki/Operation_Mockingbird#Directorate_for_Plans)

[http://carlbernstein.com/magazine_cia_and_media.php](http://carlbernstein.com/magazine_cia_and_media.php)

A couple of representative articles from that time period:

[http://news.google.com/newspapers?id=5MleAAAAIBAJ&sjid=djIMA...](http://news.google.com/newspapers?id=5MleAAAAIBAJ&sjid=djIMAAAAIBAJ&dq=alsop%20mccarthy&pg=3493%2C1113850)

[http://news.google.com/newspapers?id=I8pNAAAAIBAJ&sjid=MYoDA...](http://news.google.com/newspapers?id=I8pNAAAAIBAJ&sjid=MYoDAAAAIBAJ&dq=drew%20pearson%20mccarthy&pg=1628%2C6235663)

Things only got worse for McCarthy through the rest of '53 and into '54.

------
burkemw3
I like reading the mobile site on the desktop! The column is thin enough to be
easily readable and there's no clutter!

~~~
pbhjpbhj
It would be even nicer with parallel columns IMO.

------
jpdoctor
Better title: The article you can't see.

(Had to jigger the site to beat the paywall. What's the way to link through
google again?)

Edit: I had reached 10 articles. Easier solution is to just open a private
browsing window.

------
DanielBMarkham
"We don’t know what we’ll find. The surveillance court may be strictly
adhering to the limits of the Fourth Amendment as interpreted by the Supreme
Court. Or not. And that’s the problem: This court has morphed into an odd
hybrid that seems to exist outside the justice system, even as its power grows
in ways that we can’t see."

Don't forget the argument from the other day, though. The Fourth Amendment
specifically outlines the use of a "reasonableness" test. If it seems
reasonable to the average man, it's probably okay.

Without anybody knowing what's going on, however, there is no common man to
check with to see if the government is acting in a reasonable way. Therefore
for all intents and purposes there are no limits, aside from precedent, which
is wonderfully flexible given the right semantic nudging.

------
peterkelly
"You’ve reached your limit of 10 complimentary articles this month"

Oh, the irony

~~~
jeff303
How exactly is it ironic?

~~~
peterkelly
The title of the article was "The laws you can't see".

This is an article I couldn't see.

At least until I switched over to a different browser, that is.

~~~
loopdoend
You mean intentionally exceeding your authorized access with intent to
defraud?

[http://www.law.cornell.edu/uscode/text/18/1030](http://www.law.cornell.edu/uscode/text/18/1030)

------
ChrisAntaki
Laws we can't see need to be repealed.

------
schrodingersCat
Does anyone else know if other countries have secret laws? It seems a bit like
government by hypocrisy

~~~
swombat
The country alluded to in Kafka's Trial had secret laws and secret one-sided
courts and secret charges.

Doesn't sound so far from reality now.

~~~
eumenides1
I think we need a new word. Kafkaean, because Kafkaesque to me implies "IS
LIKE Kafka's nightmares" when I really want to describe it as "IS Kafka's
nightmares".

It's funny because when you were in high school and you thought the books you
read wouldn't ever apply to life, but now that they do, the thoughts scare the
crap outta me.

