
NSA surveillance may be legal – but it’s unconstitutional - Libertatea
http://www.washingtonpost.com/opinions/nsa-surveillance-may-be-legal--but-its-unconstitutional/2013/06/21/b9ddec20-d44d-11e2-a73e-826d299ff459_story.html?tid=rssfeed
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confluence
I do find arguments based on strict legality to be just a tad strange.

Just because something is strictly legal doesn't mean that it's right, nor
that it's in the spirit that the law originally intended. I mean, it was legal
to exterminate Jews in Nazi Germany, send millions to death camps in Soviet
Russia and starve 10s of millions to death in Communist China.

Strict legality is particularly low bar to pass. What happened to the spirit
of the law? What happened to public discussions of the law? What happened to
proportional use of the justice system? What happened to basic human rights?

Maybe I'm just naive, but when people hide behind the "Well it's legal! A
secret court said so!" charade, even when they know that that it doesn't
follow the spirit of the laws that they currently operate under, it just
pisses me off.

It's kind of like when someone cheats a system using a secret loophole that
was clearly not intended to be used for that purpose. The person then turns
around and says that it's a perfectly legitimate move. They then move forward
on the assumption that the mere existence of said loophole gives them carte
blanche to just do whatever they hell they want to do.

It appears as though the NSA has hacked the legal system.

~~~
austenallred
Bingo. The entire NSA hearing a few days ago was NSA directors pointing out
under which law they perform each action. They could do it, because according
to US law it _is_ legal.

The much more deep rooted question is "is this good?" Every aspect of law in
the United States can be changed and rewritten according to the conscious of
the people, though this takes a long time to do. Legality is temporary. Under
ideal circumstances we would debate "right vs wrong" and change laws
accordingly.

~~~
alexqgb
There's also a big difference between new law - which can be batshit insane -
and settled law, which has both passed constitutional muster and become widely
accepted. Trying to reconcile "consent of the governed" with "secret law" goes
in the opposite direction.

~~~
aclevernickname
I thought NSPD-51 solved all of that, putting the Executive Branch above the
constitution, so it's actions didn't have to pass muster.

I wish I was kidding:

[http://en.wikipedia.org/wiki/National_Security_Presidential_...](http://en.wikipedia.org/wiki/National_Security_Presidential_Directive_51)

[http://www.marjoriecohn.com/2007/05/unitary-king-
george.html](http://www.marjoriecohn.com/2007/05/unitary-king-george.html)

------
argumentum
As the Constitution is the "supreme law of the land", nothing
"unconstitutional" can simultaneously be "legal."

~~~
dsr_
Until the SJ rules that a law is unconstitutional, it is still a law. When
they make a ruling, it stops being a law.

I'm disappointed in the number of people who care more about legal vs illegal
than about right vs wrong. Laws can be constitutionally proper and yet wrong.

~~~
rayiner
> I'm disappointed in the number of people who care more about legal vs
> illegal than about right vs wrong. Laws can be constitutionally proper and
> yet wrong.

I'm disappointed at the number of people who project their value system
("right" and "wrong") on to everyone else then call all the people that
disagree with them "Brave New World"-esque Sheeple. I just heard Clinton
talking about the NSA situation today on Bloomberg. He said something along
the lines of: we should make sure protections are in place, but you can't
expect the government to ignore e-mail, etc, when everyone uses it to
communicate these days.

The reporter seemed entirely happy with the answer. So: whose ideas of "right"
and "wrong" are we using?

~~~
lawnchair_larry
How could this be disappointing? Nobody cares about what's legal, that is the
point. We care about what is just.

~~~
tptacek
You know that semantic distinction wasn't the point of his comment.

------
coldcode
I'm sure the NSA has enough interesting information on the supremes to ensure
that a constitutional ruling never happens.

------
leoc
> As for Section 702 of FISA, the Supreme Court has held that the Fourth
> Amendment does not protect foreigners from searches conducted abroad.

But PRISM, as opposed to "upstream collection", isn't (necessarily) about
searching foreigners abroad, or even at the border. It's about searching their
stuff held on servers (sometimes) located inside the US and run by US
companies as part of a business agreement with those foreigners. (However I
have heard it suggested (IANAL) that sufficient legal cleverness can allow
this to be characterised as a border search.)

> But it has never recognized a foreign intelligence exception to the warrant
> requirement when foreign-targeted searches result in the collection of vast
> stores of citizens’ communications.

Maybe. However the FISA appeals court certainly appears (IANAL) to have
decided that a foreign-intelligence exception exists
[https://news.ycombinator.com/item?id=5917223](https://news.ycombinator.com/item?id=5917223)
. Once again, from the Yahoo! case ruling
[http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf](http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf)
:

 _2 . The Foreign Intelligence Exception . The recurrent theme permeating the
petitioner 's arguments is the notion that there is no foreign intelligence
exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this
notion, positing that our decision in In re Sealed Case confirmed the
existence of a foreign intelligence exception to the warrant requirement._

And again, this is a ruling on a law which allowed intentional targetting of
US persons, though outside the United States.

~~~
pyre

      | However I have heard it suggested (IANAL) that
      | sufficient legal cleverness can allow this to be
      | characterised as a border search.
    

Every airport is considered a 'border.' So even cities that are greater than
100 miles from a land border, or the ocean have a 100 mile circle around their
airport where 'border searches' can happen. It doesn't take much legal
cleverness to apply this to foreigners accessing US-based resources while
sitting at home in a foreign country.

~~~
jessriedel
The 100-mile number is taken from a federal law that was found to have no
importance with respect to constitutionality. The Supreme Court made is clear
that border searches must actually involve border crossing.

[http://scholar.google.com/scholar_case?case=6933260753627774...](http://scholar.google.com/scholar_case?case=6933260753627774699)

~~~
pyre
Tell that to the US Border Patrol searching an detaining people that just
happen to be near the border. It's especially fun for people that have their
visa status in limbo because the State Department is processing an update.
They are allowed to stay here, but all of their official papers are expired,
so Border Patrol throws them in jail for a few days until they sort things out
with the State Department. This all happens on regular roads that are not
within distance of a border crossing.

This case is from 1973, and while it may presumably apply here, the CBP
doesn't seem to think that it does.

------
FamousWarrior
If it's unconstitutional, it is illegal, period.

