
Secret government: America against democracy - primelens
http://www.economist.com/blogs/democracyinamerica/2013/07/secret-government
======
adventured
"I'd very much like to know what led Mr Obama to change his mind"

He didn't change his mind. He lied to get elected. His team knew exactly what
message to hit, riding the wave of anti-Republican / anti-George W. Bush
sentiment, to win the election. Obama is a politician above all else, and a
scoundrel; but then I repeat myself [hat tip Mr Twain].

Normal people get confused by how a politician's brain works. Typically a
person holds a set of beliefs, and attempts to follow those whenever they
reasonably can. They have a code of morality, knowingly chosen or absorbed by
default, and they try to be good, most of the time. Politicians do not
function that way professionally. Work life Obama is not private life Obama. A
voter sees what they think is a normal person when they vote; there's nothing
normal about the business life of a politician. The really talented ones hold
every belief simultaneously, and switch when it's required. With the only
restriction being the party ideology; and the only variable within that being
the strictness of adherence (it's the same game of ideological flexibility,
just played within the party's limits).

In this day and age, to aspire to the Presidency, you're either a psychotic
power luster capable of any lies and misdeeds necessary to win the office, or
you're an ideologue willing to fall on the sword. The former usually wins.

~~~
fractallyte
Has anyone invented/discovered a system where this _can 't_ happen?

There's that famous phrase (Churchill): 'It has been said that democracy is
the worst form of government except all the others that have been tried'. But
this is more subtle: it's about lying, and ultimately, corruption. Is this a
solved problem in hard political science?

I know of various solutions explored in science fiction, notably by Robert
Heinlein, Arthur Clarke, Eric Frank Russell, Christopher Anvil, et al. There's
game theory, where cooperation 'breeds' more cooperation, in a world of
defectors.

But, it seems to me, corruption is now the biggest problem facing humanity. If
we can fix that, it'll cascade down through everything else: climate change,
energy sources, ecological destruction, sexism, etc...

~~~
exratione
"Medieval Iceland and the Absence of Government"
[http://mises.org/daily/1121](http://mises.org/daily/1121)

Distributed dispute resolution services, a market for justice, as the
foundation for a society free from most of the issues that plague the
stationary-bandit state characterized by attempted monopolies on violence,
law, and coercion. A system that lasted many times longer than the US did as a
free society before falling to cartelization.

~~~
sageikosa
I like von Mises (to pieces) as much, if not more so than the next guy; but
the rest of the world is well past the societal tipping point of a low-
population growth inaccessible insular community.

Everybody kept the social peace, because the cost of breaking it was too high:
nowhere to go to escape societal retribution, everyone "knew" everyone else or
could pick you out as a stranger in the local community if you moved around
the island and would get your back-story eventually.

------
api
The U.S. has a very long history of foreign policy hypocrisy, especially since
WWII.

One of the reasons the British finally divested themselves of their empire is
that it was bankrupting them and destroying their civil society. The empire
eventually comes home. Everything we've done overseas will eventually be
applied to us, and the costs will be ours to bear. Hopefully we'll be as wise
as the British and divest ourselves of empire before it destroys us, because
it seems like civilizations that do _not_ gracefully exit empire collapse.

~~~
digitalengineer
It would seem the British were 'assisted' with parting with their empire by
the US: "...an ambitious geopolitical agenda hatched within President Franklin
D. Roosevelt's Treasury and aimed at eliminating Britain as an economic and
political rival". [http://www.amazon.com/The-Battle-Bretton-Woods-
University/dp...](http://www.amazon.com/The-Battle-Bretton-Woods-
University/dp/0691149097)

~~~
api
Maybe we can dump our empire on China. Bonus: they'll think it's a good thing.

~~~
gadders
They are already building their own in Africa.

~~~
zhemao
Yeah, minus the enormous military expenditures and political meddling. They're
going about building empire the smart way: a way in which no one even realizes
they are building one and they can pull out at any time without far-reaching
political repercussions.

------
tptacek
_A court that is supreme, in the sense of having the final say, but where
arguments are only ever submitted on behalf of the government, and whose
judges are not subject to the approval of a democratic body, sounds a lot like
the sort of thing authoritarian governments set up when they make a half-
hearted attempt to create the appearance of the rule of law._

It does sound like that. I agree. But so far as I can tell, even the the most
strenuous credible arguments against the FISC don't argue that its judges have
the "final say" over surveillance issues; FISC judges issue warrants which can
be overturned by federal courts. The FISC isn't "supreme" and is in fact
subject to the judgements of SCOTUS.

As I understand it, the warrant process used in domestic criminal law is
_also_ not adversarial, implying somewhat that the second part of the topic
sentence of this graf might mislead.

Another error, this one more egregious:

 _None of the judges of the FISA court were vetted by Congress. They were
appointed by a single unelected official: John Roberts, the chief justice of
the Supreme Court._

Of course, this isn't actually true; every sitting FISC judge was approved by
the Senate, since FISC judges are appointed from the federal bench.

The article also cites sources selectively, which is unsurprising because it
doesn't do any actual reporting but is instead an editorial analysis; so for
instance it captures what the law professor who spoke to the New York Times
believes, but misses what Orin Kerr, a GWU law professor and widely known
expert on computer crime law (and, as I understood it, one of Weev's advocates
at appeal), has said about the same process. Kerr has the (mis)fortune of not
speaking through the prism of the mainstream media, but directly from his
blog.

By way of bona fides, before I'm again asked how long I've worked for NSA: I
think the FISC process is extremely bad and poses a long-term threat to civil
liberties. But to read this article, you might come away with the idea that
the solution would be to fix the FISC, when in reality what needs to happen is
for Congress (which retains the authority to abolish FISC entirely) to
establish some kind of bright-line rule about the limits of "foreign"
surveillance (now that so much foreign traffic routes through the US) and to
ensure that foreign surveillance is firewalled off from the rest of the
government.

~~~
glesica
> I agree. But so far as I can tell, even the the most strenuous credible
> arguments against the FISC don't argue that its judges have the "final say"
> over surveillance issues; FISC judges issue warrants which can be overturned
> by federal courts. The FISC isn't "supreme" and is in fact subject to the
> judgements of SCOTUS.

You're wrong. How can the SCOTUS review a FISC decision if those decisions are
never made public and if, upon challenge, the government can invoke the state
secrets privilege. This is exactly what has happened in the past.

The supreme court doesn't hear cases unless there are two parties. It does not
issue "advisory" rulings. But if the citizenry aren't allowed to know how the
FISC interpreted the constitution, then how can we possibly object and
challenge the interpretation before the SCOTUS?

Further, judges don't generally do a lot of constitutional interpretation when
issuing warrants. They rely on precedent. If a judge were to step a bit
outside of whatever precedent existed on a given topic (for whatever reason),
the person against whom the warrant was to be served would later have the
opportunity to challenge the warrant, and the constitutional interpretation
that resulted in its issue. None of this is the case with the FISC. They are
free to interpret the constitution however they see fit without any _real_
possibility of their opinions being challenged or reviewed.

> Of course, this isn't actually true; every sitting FISC judge was approved
> by the Senate, since FISC judges are appointed from the federal bench.

Nice try, but nope. Just about every Supreme Court justice has been a federal
judge previously. Did that mean that there was no confirmation process? Not a
chance.

Congress vetted these people to be federal judges, not members of a secret
tribunal that makes secret constitutional interpretations that have the force
of law and are effectively immune from further scrutiny.

~~~
tptacek
I actually agree with you about the appointment issue --- in the sense that my
guess is that FISC court appointment procedures mean it isn't an Article III
court. But a couple problems with that for this line of argument:

* There are Article I courts; Congress is empowered to create tribunals for which the Article III appointment rules don't apply. Since the FISC is adjudicating policies that Congress is already empowered to legislate (the Constitution being as silent on foreign surveillance as it is on the makeup of the Air Force), not adhering to Article III doesn't automatically make the FISC unconstitutional.

* In trying to pursue my leg of this argument over the past couple days, I've been pretty well slapped down on the idea that appointment issues damage the Article III standing of the FISC:

[https://news.ycombinator.com/item?id=6010406](https://news.ycombinator.com/item?id=6010406)

~~~
Uchikoma
"not adhering to Article III doesn't automatically make the FISC
unconstitutional." nice try with a straw man attack.

~~~
tptacek
I am not smart enough to understand what this objection means. A stab at a
response: perhaps you're not aware that there are Article I courts as well as
Article III courts.

~~~
Uchikoma
No one talked about unconstitutional. You raised the argument and then shot it
down.

------
malandrew
Question:

Do all the justices in SCOTUS have access to each and every ruling made by
FISC? If so, can a SCOTUS justice unilaterally promote a FISC ruling to be
heard by SCOTUS?

In other words, can SCOTUS provide a secondary source of oversight over FISC
in addition to the oversight from the intelligence committee in Congress?

~~~
dragonwriter
> Do all the justices in SCOTUS have access to each and every ruling made by
> FISC?

No.

> If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard
> by SCOTUS?

No, even if they have knowledge of a lower court decision (and there is an
intermediate court between the FISC and SCOTUS), neither a single Justice nor
the Supreme Court itself can "pull" a case that hasn't been brought before
them by a party.

~~~
DannyBee
You are correct in the first instance, however, the law does direct FISC to
transmit records to SCOTUS upon writ of certiorari.

So at least in the case that someone wants to actually appeal one, it's not
kept from SCOTUS See 50 USC 1803(b)

As for the second part, again, you are technically correct. They cannot
promote such rulings.

However, they can stay them, per 50 USC 1803(f). In fact, individual justices
can stay them.

~~~
dragonwriter
> You are correct in the first instance, however, the law does direct FISC to
> transmit records to SCOTUS upon writ of certiorari.

Unless I'm missing something, it directs FISC to transmit records under seal
to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals,
and FISCR to do so to SCOTUS.

> So at least in the case that someone wants to actually appeal one, it's not
> kept from SCOTUS See 50 USC 1803(b)

1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to
SCOTUS, only provides for appeal by the government against denial of a
warrant.

~~~
DannyBee
No, because of the other sections (50 USC 1881(a), 50 USC 1861(f)) that allow
for party review to FISCR, then they also allow you to get to SCOTUS from
there.

So it depends on what FISC did :)

I agree that it appears that in the case FISA has authorized something that
requires no outside help (IE the government is using government resources),
you theoretically have no recourse until they use it against you and you
challenge it.

However, the question was about Yahoo/et all, which don't fall under this
provision. They fall under others, where they are ordering production or
interception by someone else.

For example, 50 USC 1861(f) says "on petition by the Government or any person
receiving such order for writ of certiorari"

In general, Congress can't keep a federal question in an article III court
from eventually being appealed to SCOTUS. To the degree they have, it would
likely be held unconstitutional.

While Congress is certainly welcome to add to the supreme court's appellate
jurisdiction, it's pretty well established that even though the constitution's
literal text technically allows congress to remove appellate jurisdiction from
the supreme court, doing such a thing is often unconstitutional if it leaves
no remedy anywhere.

The literal text being: "The judicial power shall extend to all cases, in law
and equity, arising under this Constitution, the laws of the United States ...

In all the other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such exceptions, and
under such regulations as the Congress shall make."

Congress could, theoretically, remove the supreme court's appellate
jurisdiction for everything. In practice, the supreme court has held this
unconstitutional, under things like Justice Story's theory doing so would
violate the Constitution's mandatory grant of jurisdiction over such claims to
the judiciary as a whole.

IE the part that says "the judicial power shall extend to _all_ cases"

~~~
dragonwriter
> No, because of the other sections (50 USC 1881(a), 50 USC 1861(f)) that
> allow for party review to FISCR, then you can get to SCOTUS from there.

To the extent that's true, the appeal provisions from FISCR to SCOTUS are
_also_ in those sections (or closer to them), not in 1803(b), which is a
nonsequitur in any situation other than the government appeal of a denial of a
warrant.

> In general, Congress can't keep a federal question in an article III court
> from eventually being appealed to SCOTUS.

Not true; Congress can -- and has -- removed questions within the Article III
domain of the judiciary from the appellate jurisdiction of the Supreme Court,
it only cannot do so for those questions expressly within the
Constitutionally-defined _original_ jursidiction of the Supreme Court. It has
even done so with regard to specific cases _already being heard in the court_.

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

~~~
DannyBee
"To the extent that's true, the appeal provisions from FISCR to SCOTUS are
also in those sections (or closer to them), not in 1803(b), which is a
nonsequitur in any situation other than the government appeal of a denial of a
warrant."

The original question was not about denial of warrants, but about FISC rulings
and their appealability. As I pointed out, there are plenty of cases where you
can appeal FISC rulings to SCOTUS.

You had said it was not possible. I agree the statute does not provide a path
to appeal certain types of warrants to SCOTUS, I was skimming 1803(b) and not
carefully enough.

However, FISC does rule on more than that, and in the cases most folks have
cared about (Verizon, Yahoo, etc), they were rulings that could have been
appealed to SCOTUS under the sections I provided

~~~
dragonwriter
> You had said it was not possible.

No, I didn't.

------
lukifer
This abuse of "special needs" is horrifically egregious, but I find myself
wondering exactly how one would go about codifying "common sense" exceptions
to the Constitution, like the infamous example of shouting fire in a crowded
theater.

If one allows for genuine edge-case exceptions, whether explicitly in law or
implicitly by interpretation, how can we prevent the gap from widening into
eroding the law completely? For instance, it's not a far leap from shouting
fire, to so-called hate speech, and from there to silencing dissidents.

(Note also the use of the word "reasonable" in the 4th; while it has a very
specific legal meaning, clearly the courts are interpreting it very
differently from civil liberties advocates.)

~~~
visarga
FISA redefined the word "reasonable". Bill Clinton redefined the word "is". It
would seem anything is fair game.

------
snowwrestler
> How is the FISA court like a shadow Supreme Court? Its interpretation of the
> constitution is treated by the federal government as law.

All federal court decisions are treated by the federal government as law. The
Supreme Court just happens to have the last word on appeal.

Generally speaking in the U.S., "the law" is not what the text of a bill says,
it is what the courts say the text means.

> And then there's the fact that "the FISA court hears from only one side in
> the case—the government—and its findings are almost never made public."

Grand jury proceedings are also secret and hear only from the government. That
is ok because a grand jury is not determining guilt, it is just deciding
whether a prosecution can proceed. Likewise, FISA is not determining guilt, it
is just deciding whether an investigation can employ certain tactics and
technologies.

~~~
aetherson
Grand juries do not issue opinions on things like "the meaning of the 4th
Amendment." It seems appropriate to apply just a tiny bit more scrutiny to the
FISA court than grand juries.

~~~
tptacek
FISC also doesn't issue opinions on "the meaning of the 4th Amendment". The
most important way the courts have shaped 4th Amendment jurisprudence in the
last century is through application of the exclusionary rule in criminal
cases. FISC doesn't hear criminal cases, and if evidence from NSA/FISA was
brought up in a domestic criminal case, it would be evaluated by a normal
domestic court judge and, very likely, excluded.

~~~
ncallaway
>FISC also doesn't issue opinions on "the meaning of the 4th Amendment"

The FISC most certainly does use the Fourth Amendment as a major part of the
justification of it's rulings. The "secret ruling" that the EFF and ACLU are
trying to view was a FISC ruling that held that on at least one occasion the
government had conducted surveillance that was unreasonable under the Fourth
Amendment
([http://www.slate.com/blogs/future_tense/2013/05/29/ron_wyden...](http://www.slate.com/blogs/future_tense/2013/05/29/ron_wyden_doj_may_have_to_release_fisa_related_documents_demonstrating_excessive.html)).

> "The most important way the courts have shaped 4th Amendment jurisprudence
> in the last century is through application of the exclusionary rule in
> criminal cases."

I think this ignores a large body of civil case law built up around wrongful
arrests and vehicular searches. Both of these are examples of active
jurisprudence over the last century that directly pertain to Fourth Amendment
violations.

A violation of the Fourth Amendment is _not_ acceptable simply because they
don't use what they obtained in a criminal proceeding. There are a massive
number of ways that the government can harm you with the information they
collect without ever filing a criminal case.

------
l33tbro
What confounds me is how Obama continues to drink his own kool-aid. Did anyone
catch him on Charlie Rose a little while back? (30 minutes in -
[https://www.youtube.com/watch?v=IlThTTJgKYo](https://www.youtube.com/watch?v=IlThTTJgKYo)).
The author of the article is right: it is difficult to know whether to laugh
or cry.

------
tracker1
Regarding "none of the fisa court judges are vetted by congress" ... weren't
they vetted when they were appointed as federal judges (since all fisa judges
are also federal court judges)?

Not that I agree with there even being a FISA court... just curious on that
point.

------
jussij
> "said he was troubled by the idea that the court is creating a significant
> body of law without hearing from anyone outside the government, forgoing the
> adversarial system that is a staple of the American justice system."

What bothers me is why a civilised country would even consider that type of
system constitutes a court of law.

Dictators and tyrants around the world use pretty much the same model and no
one in their right mind would call those legal systems.

------
DanielBMarkham
Warning: a bit of meta ahead.

I upvoted this as I was reading the first paragraph, even though I had a
sneaking suspicion it was just a recap of secrecy state news. I did this
probably because I'm a sucker for things that I feel strongly about
emotionally.

But as I continued reading, I'm thinking _Good grief! Here 's some other
person rightly upset about where we are but clueless about how we got here or
what to do about it. What have I gotten into?_

Then I come to this:

"All this somehow got me thinking of the doctrine of "democracy promotion",
which was developed under George W. Bush and maintained more or less by Barack
Obama"

What? America has publicly and openly supported democracy -- sometimes at the
pointy-end of a gun -- for _decades_. Then several other errors stood out.

I'm sure that W.W., whoever he might be, means well, but we've kind of reached
the point here where there are a hell of a lot of people getting the general
message that things are fucked up and carrying a ton of baggage with them when
trying to figure out how. So break out the pet theories: evil bankers,
corporations controlling the government, one party or the other out to set up
a kingship, GW Bush policies continues to destroy the country -- whatever
emotional baggage they're dragging around, they're bringing it to this
discussion.

This is a _really_ bad thing because it trivializes the entire issue. Ezra
Klein the other day was talking about FISC judges mostly being Republican, as
if the problem here were not that we have the FISA court in the first place,
but that the wrong people are on it!

(I find a bit of self-referential critques to all of this; it seems the
charges being leveled are those the authors would be most guilty of themselves
given the chance, but I digress)

This guy wants to go on a riff about how the select few -- our betters -- are
making these incredible decisions about the disaster we've created.

Let's be clear about this: the government keeping detailed records of all the
communication and movement of each citizen is not okay, even if 90% of the
country voted for it. It's not okay because a democracy cannot survive in a
perpetual state of war, and once we are at war with the population itself,
it's never going to end well. Police counter-intelligence is one thing. There
are probably 10K people in the US that need secret files and should be watched
because they are dangerous. Fishing expeditions against huge databases of
facts from years ago regarding any random citizen are out of the question.
It's not that it's bad or makes me angry. It's that it doesn't work. The
system is unsustainable over the long-term.

So kudos to the author for being outraged and making a point about the system
broken. I encourage whoever it is to stick around and learn to articulate the
good parts of the system as well as the shitty parts. Learn the difference
between what a lot of the rhetoric folks read, like about the judges being
unaccountable, and what the reality actually is. Otherwise it's just more
mindless ranting. (About something many of us are legitimately upset about)
Because it confuses the issue as much as illuminates it, this is not helpful.

I'm going to start being much more careful with upvotes for security state
articles on HN. Love 'em, but they need to bring more quality to the table to
be here.

~~~
marshray
I agree the 'democracy promotion' angle was a little play for ironic guilt.
But it's his piece, his audience, and his editor.

When I hear people speaking as if 'democracy promotion' were a policy begun
under Bush 43, I figure they're just young. Folks under the age of (gasp)
about 38 are just not going to remember.

~~~
DanielBMarkham
I think that was what really did it for me.

These issues have been festering since the turn of the 20th century, maybe
before. It's a result of one edge case piled on top of another.

To try to draw it all into some simple narrative that happened in the last 12
years? It's simplistic to the point of being preposterous.

------
o0-0o
America is not against democracy. It is about restraining itself from making
that whole area over there a glass parking lot. It may come to that, anyway.

------
ckozlowski
(There's a fantastic discussion and analysis in this comments thread, and I'm
learning a lot from it.

Thanks to all involved. =)

------
Mordor
It's worrying that words are being redefined to the extent that Obama doesn't
make any sense anymore.

------
bayesianhorse
I don't believe the U.S. system can change these undemocratic features at a
favorable cost.

------
amerika
It's not popular to say this but: democracy is a failure.

We have constant political turmoil, constant corruption, and constant
interruption by "well-intentioned" but insane government programs.

The world is constantly unstable.

Let's get away from the popularity model of government and move to the
competence model.

------
amerika
I don't think this is America against democracy. Democracy is mob rule.

I think this surveillance was originally a good idea, since all the data's out
there and the bad guys are using it. It was abused when it was turned from
"listen to all traffic and see if you can find terrorists" to "use this
whenever we suspect someone of anything."

