
Justice Dept. defends secret rulings in new spy court filing - ferdo
http://gigaom.com/2013/07/08/justice-dept-defends-secret-rulings-in-new-spy-court-filing/
======
rayiner
The actual article, without the blogspam and inaccurate title:
[http://gigaom.com/2013/07/08/justice-dept-defends-secret-
rul...](http://gigaom.com/2013/07/08/justice-dept-defends-secret-rulings-in-
new-spy-court-filing/)

The gist of the DOJ's argument is sound. The key thing to understand is that
the FISC court is not making law. It is interpreting the government's powers
under existing law. This is a process the executive regularly engages in: it
asks itself, is this activity legal? This is the only way it can act, indeed
the only way anyone can act, within a federal court system that does not allow
courts to issue advisory opinions. You interpret the law to determine whether
your course of action is constitutional.

Without secret FISC rulings, you'd have secret NSA legal interpretations. The
FISC can't grant the executive any power it didn't otherwise have--it exists
instead as a check on the discretion the executive would otherwise have in
using that power. Nothing forces the government, or any other entity, to
publicize its interpretation of law until it is challenged in public court.

EDIT: I should note that I don't think the DOJ's argument is necessarily the
"right" one. Or the "best" one. But I think it's sound. It's based on a
conservative interpretation of the scope of the executive's powers, but not
one that's outside the mainstream.

~~~
ChrisAntaki
The FISC court has repeatedly made the wrong decisions. When their decisions
have been brought to light, there's been massive public outrage, and an effort
on their part to to arrest the "leaker". These are all signs of a corrupt
court, that needs to be dissolved.

~~~
rayiner
What "massive public outrage?" A pitiful 400 people showed up to the San
Francisco "Restore the 4th" protests.

~~~
methehack
Just because people didn't give up their hotdogs to risk getting their heads
smashed in doesn't mean there's not outrage.

~~~
ChrisAntaki
Agreed. National holidays might not be the best day to hold protests.

------
ferdo
Looking at history it would seem that when law disappears from view, people
disappearing isn't far behind.

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ganeumann
The DOJ's brief says on p. 16, footnote 5: "Sixteen members of the House of
Representatives as amici curiae raise two concerns regarding information
sharing between the Executive Branch and Congress: (1) that because much of
the information they receive is classified, they cannot discuss it in
congressional debate..."

I had thought that the Constitution guaranteed Congress the right to say
anything when they are talking aboiut legislation ("...and for any Speech or
Debate in either House, they shall not be questioned in any other Place.", the
Speech or Debate clause.) Any Constitutional lawyers here? How do these two
things jibe?

~~~
Zigurd
You might think so, but that immunity excludes felonies, and felonies are
cheap these days.

~~~
ganeumann
Does it? That's not how I read it, but I'm not a Constitutional Lawyer. Here's
the full clause

"The Senators and Representatives shall receive a Compensation for their
Services, to be ascertained by Law, and paid out of the Treasury of the United
States. They shall in all Cases, except Treason, Felony and Breach of the
Peace, be privileged from Arrest during their Attendance at the Session of
their respective Houses, and in going to and returning from the same; and for
any Speech or Debate in either House, they shall not be questioned in any
other Place."

I guess the semicolon can be interpreted in two ways, although I interpret the
Speech or Debate clause as being only after the semicolon; the use of "and for
any..." also does not seem to exclude felonies. Logically the clause would
also seem to lose any bite it might have if things the legislature declared a
felony were then excluded from Speech or Debate. But again, IANACL.

------
alan_cx
Erm, so the US is a democracy, right? So, all these muppets in government are
servants of the US people, right? So, who exactly are they to tell Americans
what they have the right to know and not know?

~~~
tptacek
Nobody. If you disagree, organize their ouster. Just be warned that by all
appearances most Americans don't see this as a voting issue.

~~~
anaptdemise
So voter turn out in 2012 was around 57% or so and Obama had 50%-51% of the
popular vote. So, basically 25% of America decides the election ignoring the
electoral collage which reduces it to 270 people, not all of which are
required to vote with their districts popular vote. This pretty much
marginalizes the middle ground voter.

So yeah... what can you do.

The only way I see any change coming is if you can get around 10% of congress
recalled in their given states. Unless people are upset enough to do that, you
wont see any change. Even if incumbents are thrown out during normal election
cycles, congress doesn't seem to get the point. As a whole their approval
rating is <15% which is terrible. But their individual approval rating amongst
their own constituents is much much higher... There is something wrong with
that logic. How do you convince voters that they are part of the problem.

~~~
bo1024
No, no, if you think voting alone can change things then you're missing the
point. These policies would have been virtually the same under _any_ candidate
with a nonzero chance of winning. It's not like choosing Obama in particular
makes a difference. Same thing for most congressional candidates.

------
JulianMorrison
Somebody hook a generator to Kafka, he's probably putting out enough RPMs to
power New York.

------
splrb
It is inconceivable that a democratic society ruled by law would even have a
notion of secret law, secret courts or secret interpretations of law as it is
inconceivable that I would ever get a constitutionally guaranteed fair
hearing. We are falling down the rabbit hole.

------
maxk42
A law that cannot be known is no law at all.

------
lettergram
It seems that the reason for the ACLU's request being declined is
jurisprudence, which is a weak argument. The court did not directly explain
why it is unreasonable to request such information (claiming national security
doesn't necessarily mean it is so). Since 2007 and 2008 many things have come
to light, including how deep their operations go and which companies (in part)
are being used for surveillance. Therefore more evidence has come to light and
the ACLU is pretty much just being dismissed in my opinion without
justification or at least without a valid reason (even if it is justified).

Legally, I think the court is "sound," but that does not mean they could not
throw the ACLU a bone by just releasing the most basic of their law
interpretations (since we already know them).

------
a3n
"The Justice Department filing also, however, suggests the Obama
administration is taking steps to make the court more transparent."

Wait, it's a court. How does the executive branch have any sway over how a
court manages itself? Unless it's a captive court ...

~~~
alttab
Or a secret court

