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Obama to release FISA court opinion that ruled NSA surveillance unconstitutional (eff.org)
227 points by sinak on Aug 9, 2013 | hide | past | web | favorite | 142 comments



I donated money to Obama's 2008 campaign and voted for him twice. I am very disappointed with him.

Now, my honest opinion is that at worst he sometimes flat out lies, or at least cleverly tries to confuse people. He says that he had an orderly plan for reviewing privacy issues, all the while, I think that his administration has consistently been trying to keep things hushed up.


Mark, I agree. I think that the situation is this: politicians, in the short term, view the security side of the security vs. freedom debate as the best option. If you can stop a terrorist attack from occurring by infringing freedom, then do it. An attack will make you look much worse than a few intelligent people being upset about privacy invasion. That, sadly, is the unfortunate incentive happening here.

I think this short term benefit of always choosing security over freedom has always been too tempting for politicans and leaders not to do it. The founders recognized this, which is why the 4th Amendment, along with the rest of the Constitution, is supposed to be enforced by the separate branch of government that is the Judicial Branch.

But you know what? The Judicial Branch hasn't kept up with the Executive at all. The Executive Branch has huge agencies within it. The Judicial Branch is just a few judges and their staff.

Why isn't there a Judicial Branch agency that safeguards the Constitution from the other two branches?? Why couldn't this agency have a bunch of people with Top Secret clearances working for it who answer to nobody but the Supreme Court and can be contacted by Edward Snowden type whistle-blowers whenever someone feels the folks they work for are undermining the Constitution?

We need a Constitution Protection Agency that is part of the Judicial Branch. Their entire job should be going after the bastards in the other two branches who go against the constitution.


The founders recognized this, which is why the 4th Amendment, along with the rest of the Constitution, is supposed to be enforced by the separate branch of government that is the Judicial Branch.

You're saying the police power is the province of the Judicial Branch?! This is a...unique interpretation. The Constitution divides the power of the government in legislative (making law), executive (promulgating and enforcing law), and judicial (evaluation of the law). In common law jurisdictions the judicial branch does not have any kind of police power, and to the best of my knowledge never has had.

I am perplexed by the number of HNers that seem to think we live in a civil law jurisdiction. http://en.wikipedia.org/wiki/Civil_law_(legal_system)



France, too, is a civil law jurisdiction. I'm not sure what point you're trying to make here.


> Why isn't there a Judicial Branch agency that safeguards the Constitution from the other two branches??

Because there is no authority for such an agency in Article III, and because the type of ombudsman agency you describe would be undertaking investigations of a sort that are executive, rather than judicial, so that even if Congress attempted to create such an agency, it would be (were it Constitutional at all) an Article II agency subject to the President even if Congress gave the Judiciary the power to appoint its officers.


>> "We need a Constitution Protection Agency that is part of the Judicial Branch."

I don't believe that a government can /ever/ effectively regulate itself--not matter how many/how strong the agencies you create.

The only effective remedy is a truly informed citizenry and civil disobedience.


The Executive Branch enforces, the Judicial judges. The Constitution says it quite explicitly in Articles 2 and 3.

You give far too much credit to politicians. They don't think of this as security vs. freedom, they think of it as power. Power for them, power for their party, power for their people. It's a simple explanation, but it fits. Heck, research has even shown that politicians will decide based on what keeps them in office, not what they "should" do [1]. Jefferson said it best: "All men having power ought to be mistrusted. Perhaps it is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."

[1] Congress: The Electoral Connection by David R. Mayhew


Many countries have more powerful and interventionist Supreme Courts. Notable, Germany[1]

[1]http://en.wikipedia.org/wiki/Federal_Constitutional_Court_of...


"I donated money to Obama's 2008 campaign and voted for him twice."

...after the first four years, why would you vote for him again? It became clear almost from the first day of his presidency that his campaign promises were hollow.

Stop letting your fear that a Republican might win get the better of you. Vote third party until the Democrats get their act together.


With winner takes all politics, there is no third party. Duverger's Law: to get 51% of the vote, everyone tries to form the smallest winning coalition.

http://en.wikipedia.org/wiki/Duverger's_law

If you want to build a viable third party, start with local elections, build your farm team. It takes decades to be viable. Then at some point, one of the dominate coalitions will pivot and subsume the new platform.

It's happened many times in the USA.


My point was not that we should be overthrowing the major parties. My point was that we should be punishing the major parties when they do not do what we want them to do. The Democrats are supposedly a center-left party, supposedly the choice for liberals in this country. In reality the Democrats are a right wing party, with some centrist leanings on very specific issues.

That means we do not really have a choice. The only solution is to vote third party until the Democrats get their act together, especially in the swing states -- we need to hit them where it hurts until they get their act together.


You might not have seen my late comment upthread...

Sure. Punish them. Get it out of your system.

You do have a choice. You can organize. You can be the change that you want to see.

As a political acquaintance of mine likes to say: Whenever I feel the heat, I see the light!

If you don't know how to get started, I recommend Camp Wellstone's organizer training and joining your local political party (whatever flavor you like) and become a precinct committee officer.


I do that when I fear the Democrats might win too. Honestly, I wish more people would realize there are other options. We'd be much better if we had a greater range of choices. Unfortunately the two parties at the top have made it very hard for third party candidates.


I wrote this a couple days ago in response to another HN comment but it's relevant here too; the first paragraph is the one I responded to:

>The question is then; in a two party system where both offer the blue pill, who the hell do you vote for?

Greens or libertarians, which I have been doing for a long time. Real change starts at the ballot box.


> Real change starts at the ballot box.

No, real change starts with working to build a mass constituency that believes that real change is necessary, and agrees on the general direction of change.

If you want it to work, change through the ballot box is fairly late in that process.


If you want to affect change, maybe helping out with this would be a start:

https://medium.com/surveillance-state/7d456a6a04df


I'm on board with this, but I expect little traction. I got actively involved with the Republican Party because I saw them as the lesser of two evils. I hoped that my fresh outlook might be able to influence the party to become the party I imagined they could be. To become involved to the point you might make a difference, you need to demonstrate that you share the same values as the leadership... effectively preventing the party from adapting or changing. In Washington, we have a top two primary. Since the primaries mostly attract political party activists, this means that third parties are almost universally blocked from appearing on the general election ballot. I see neither party willing to give up this power they have obtained, so I expect politics in Washington State to go nowhere. We as a people passed that initiative so now we're stuck with the consequences.


Do you have write-in candidates in Washington? I'd see what I'm proposing as more of a platform for introducing new ideas and gathering popular support for them. You just need to identify who is credible to bring forth those new ideas, and give them a platform first.


Take a look at Hirschman's Exit, Voice, and Loyalty, which describes in general terms the political phenomenon you're describing.

I hope you check this—you should put an obfuscated e-mail address in your profile.


Barring a constitutional amendment that implements a multiparty, proportional-representation parliament, your choices in Murka are either Kang or Kodos.


If what you're doing isn't working, do anything else.

Voting 3rd party is anything else.

I vote 3rd party, which to me is invoking "none of the above."


> If what you're doing isn't working, do anything else.

I can't tell if you're being sarcastic. That's just the legislator's fallacy: "We must do something, this is something, therefore we must do this."

You would be better off to try something that has more hope of actually working, like voting in the primaries. Or encouraging your state representatives to publicly finance elections for federal office in your state, so you have a better choice for federal candidates in the future. Or finding a way to convey to your representatives that you won't be supporting them in the future if they don't do something about this in the present, rather than waiting for the next election when the issue may no longer hold the attention of the public.


> what you're doing isn't working, do anything else.

That's a fairly silly proposition that could justify any arbitrary change of action no matter how unlikely it was to produce better results (indeed, even if it was certain to provide worse results) than your current course of action.

> I vote 3rd party

Is it working? If not, shouldn't you, by your own standards, be doing anything else?


I don't know about that. It's a vote for left Twix or right Twix; just pick a side and eat it, and keep the other for later - or have a Milky Way instead. It's time to start eating Milky Ways.


Political analysis from a cartoon show, regurgitated endlessly to shut down any more nuanced discussion.


Actually, the currently-accepted theory among political scientists is that America's first-past-the-post electoral system, in which the plurality candidate wins and everyone else loses, necessarily leads to an effectively two-party system.


Citation needed. In the US there have been other parties that have put presidents in office (Theodore Wilson was a Progressive Party candidate - http://en.wikipedia.org/wiki/Progressive_Party_(United_State...) and in the UK, which also has a first-past-the-post system, there are multiple parties and the country is currently governed by a coalition of Conservatives and Liberal Democrats.

FPTP certainly makes 2-party outcomes more likely, but then so does unlimited election spending. It's not the foregone conclusion you suggest it is.


> In the US there have been other parties that have put presidents in office

There have never been more than two nationally-competitive parties in the US. There have been times when a party collapsed and subsequently was replaced (the Federalists by the Whigs, and the Whigs by the Republicans.)

> Theodore Wilson was a Progressive Party candidate

Presumably, you mean (former) President Theodore Roosevelt, who, formed the Progressive Party in a factional split from the Republican Party over his dissatisfaction with his hand-picked successor.

And who didn't win, so isn't an illustration of your claim that parties other than the two major ones have put Presidents in office.

> and in the UK, which also has a first-past-the-post system, there are multiple parties and the country is currently governed by a coalition of Conservatives and Liberal Democrats

The UK and US differ in that, in additional to FPTP voting for members of the national legislature, the US has a separately (and indirectly) elected strong executive using a means that is even more strongly favors the two major parties than simple single-member district FPTP elections do; this not only gives a greater tendency for a major party to win control of the administration by winning the Presidential election, it further limits the expected influence of non-major party candidates for the national legislature, which further reduces their prospects.

So, yes, there is a well-understood structural reason in the electoral that the US has even less representative government and a stronger tendency to a two-party system (even though it has weaker parties) than the UK, even though both use FPTP for the national legislature.


Theodore Roosevelt indeed - I jammed his name together with Woodrow Wilson, his Democratic opponent. Wilson beat him handily, but Roosevelt still outpolled the GOP candidate, WH Taft.

You are quite right about the key difference with the US having an elected executive vs the parliamentary democacy system of the UK, but I don't see how FPTP prevent the election of Congressional candidates from outside the two major parties. There are usually a few independents in either chamber of Congress, but I don't see any particular reason why another party couldn't make a showing if it were willing to put in the organizational leg-work.

In my (limited) experience American politicians and parties are excessively focused on elective office; being from Ireland myself I think long-term success stems from building a solid local constituency. So for example, I think it's a complete waste of time for the Green party to run candidates in the US presidential election, instead of working to capture a few seats in Congress or in state legislatures. I have been involved in a few such local campaigns, and what I've observed is that on failing to win a major election the candidates tend to exit politics instead.


> I don't see how FPTP prevent the election of Congressional candidates from outside the two major parties.

It doesn't prevent it, it just makes it extremely rare. The reason is, essentially, Tragedy of the Commons: for each individual voter, the most strongest result from voting for a minor party candidate rather than the least-opposed major party candidate is to make it more likely that their most-opposed major party candidate will win over their least-opposed major party candidate.

> There are usually a few independents in either chamber of Congress

Since WWII, there's sometimes a few independents in Congress in total, but rarely more than 1-2 in either chamber, and often none in one or both chambers. Things were a little different earlier (in part because the two-party system in each state was sometimes not the same as the national two-party system; e.g., in Minnesota for a considerable period, the two competitive parties were the Farmer-Labor Party and the Republican Party.)

And even the very small number of independents in Congress overstates the non-party influence; very often the "independents" in Congress are either people who were elected as members of one party and then defected after being elected (sometimes being re-elected as independents once they have secured the advantages of incumbency), and at other times they are independents that one of the two major parties has chosen not to oppose in general elections. (Note that the two independents currently in the US Congress, both in the Senate, include one of each of those descriptions.)


I appreciate that - I'm familiar with Condorcet's and Arrow's theorems. I'm not a fan of FPTP myself (as I come from a country with proportional representation, and quite like that it's how local elections are run where I live); I just don't think it's deliberately engineered to effectively prevent the formation of other parties, although I certainly agree that it's frequently gamed to that end.


FPTP itself is not deliberately engineered to lead to two parties and I doubt that was the intent of the framers anyways. For a time at the beginning of U.S. government the whole notion of strong political parties was considered bad for governance anyways; people were supposed to represent their constituents or their state.

However nowadays the two major parties certainly do cooperate in ensuring that there remain only two major parties, rather aggressively going even further than FPTP would otherwise lead to in keeping additional political parties weak. It's easier to get elected without a party affiliation at all than to be elected as a party other than D or R.


> I just don't think it's deliberately engineered to effectively prevent the formation of other parties

Whether it is "deliberately engineered" to do that or not, it has a fairly well-demonstrated effect of doing that compared to systems which provide more proportional results. Intent is pretty much irrelevant.


One of the biggest reasons third parties don't make it is financing. If you have a lot of cash that you want to give to a party, you give to a party that will likely be elected and might return the favor. If you have A LOT, you give to both parties. What wealthy contributors are going to give their money to a third party when they can afford to back two horses?


Also, gerrymandering. It's a major, major factor in maintaining the status quo. The UK has picked up on this trend (well, they've done it before, but it's kicked up a notch), and the conservatives been quietly moving parliamentary boundaries for the last few years.


What saddens me is that while in the 2012 elections it seems most Obama voters were effectively choosing the lesser of two evils, in 2008 they were voting for Obama. They believed in what he was supposed to represent.

In retrospect, maybe they were voting against Bush. In the next election maybe a majority will vote against Obama, and the game will keep going.


What saddens me is that while in the 2012 elections it seems most Obama voters were effectively choosing the lesser of two evils, in 2008 they were voting for Obama. They believed in what he was supposed to represent.

They wanted to believe. Even then Obama gave off considerable whiffs of being a relative political neophyte who felt entitled -- or even destined -- to power, and was given an easy path into the White House by an all-too-eager Democratic apparatus. Still, I was glad he won in 2008 because of his platform; he eventually reneged on so many of his campaign promises that I could not, in good conscience, vote for him in 2012.


I think most people, even those who follow politics, buy into the emotional experience rather than the actual politics. It makes people feel good to listen to a great speech on paying back birth control pills, who cares that it's a really small issue compared to foreign policy or economic policy. The number of real 'political engineers' is really small anyway.

I don't even blame those people. For example I am a car enthusiast but not a car engineer, so while I may love the Porsche brand for the emotional connections it has in my mind, a car engineer who really knows what he's talking about may very well know for a fact that the tech for part X is better in a Toyota. I don't know and I don't care.

People just get disappointed in politicians because they operate in an incentive system that rewards them for not keeping their promises, because votes are a 'sunk revenue' once in office. If laws were made in a private market, they'd be incentivized to be more consistent.


Wow, market based direct democracy, the media would wet themselves; here is an example headline:

"Vote for higher welfare for lazy people? Get real?!? Vote down the poor food tax and WIN two year supply of McDonalds today![1]"

[1] Terms and conditions apply.


I am not talking about democracy, I am talking about polycentric law.


We may never have a true democratic election in the US again. As long as the NSA dragnet exists, we'll never know what privately collected information was used to humiliate political opponents or cause them to withdraw from the race rather than face public embarrassment.


By your standards, we've probably never had such a thing. Look back to the election 1800: does this sound like a clean campaign to you? http://en.wikipedia.org/wiki/Election_of_1800#Campaign

What you're specifically alleging could be equally applied to elections in which Nixon was involved, which wer influenced by McCarthyism, when J Edgar Hoover was in office...we could go on tracing it back to the suppression of Shays' Rebellion in 1787 (see http://en.wikipedia.org/wiki/Shay%27s_Rebellion#Impact_on_Co...).

http://en.wikipedia.org/wiki/Election_of_1800#Campaign


To agree with anigbrowl, corruption at the ballot box has pretty much been a thing in politics since America's inception. But there are a lot of assumptions in your lament that are extremely problematic.

Political opponents are not the crux of democracy. Very few things in the apparatus of government are dismantled upon the election of any office. Office holders set the direction and make the crucial decisions, but they are not the messiahs we make them out to be. It's comforting to believe in benevolent dictators and lofty monarchs, but if your only real choice is between two people, you're already failing as a democracy.

The choice for an elected official should stand on that candidate's character and their willingness to listen and engage on the issues you care about. But the issues themselves are something you yourself remain responsible for.

We haven't had a "true democratic election" since we came up with party platforms.


McCain wasn't exactly putting up a fight in 2008. The main reason, as far as I could tell, that Obama might lose was because he looked black.


I think humans rationalize quite a bit to please both sides. Spend enough time with people who are smart and promote issue X strongly, and you will soon bend whatever 'principle' you had. The idea of balance is very tempting.


I am very disappointed with him.

Yup. My disappointment is tempered with the knowledge that we (The People) aren't doing our jobs very well either.

"Power concedes nothing without a demand. It never did and it never will."

-- Frederick Douglass

"I agree with you, I want to do it, now make me do it"

-- FDR

Politicians only respond to pressure. Period. From a game theoretic standpoint, it makes perfect sense: Why take a position today which could come back and bite them tomorrow? Better to take the safe route, the status quo.

I have modest experience with this, mostly disappointment. The small successes we had happened when we packed hearings with bodies.

If you can mobilize and won't go away, politicians will do anything to make you go away. It doesn't matter who's in the chair: Democrat, Republican, fruitcake, saint, elected, appointed, whatever. You make a stink, you get your way.

Sometimes you have to make a very big stink. And the personal costs are often very high.


He explicitly denied warrantless surveillance in his press conference a few hours ago - a few hours after the guardian published a piece on exactly how they go about it.

Also telling were the pregnant pauses when posed questions about the NSA, the backtracking on and modification of sentences that he realised were about to be dangerous, and the fact that he quipped about journalists reading body language when he met Putin - which rather tells us what was on his mind.


It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? It seems like at that point it should deny every single request going forward until the illegal activities have stopped.

Is there a process for impeaching the FISA judges for malfeasance?


If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants?

First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis - not least because their decisions might be classified now, but may well be declassified in the future, and their reasoning will be held up to scrutiny.

More importantly, just because an agency is found to have operated illegally does not mean that everything the agency does must then be rejected. It's easy to find examples of police officers or even entire departments being corrupt, but it does not follow that everyone who is arrested by the police is necessarily innocent, or that all arrests are flawed.

Arguments of the kind you make above involve a fallacy of composition, one which seems to appear ever more frequently on HN. http://en.wikipedia.org/wiki/Fallacy_of_composition


I'm not sure how anyone can has enough reasonable information to make a case that FISA doesn't rubber stamp cases. It seems to me it works that of the way large organizations navigate political nuances internally; people who don't run the technology and platforms make the decisions as it pertains to influence that, is often, good for self-preservation and fiscal motivation - the operators implement the systems as they see fit and generally don't have "real" oversight from the approvers. Even if they do - generally they don't have enough understanding to enforce it if they wanted to. It's just a matter of mincing words at that point.

I think until we see clear evidence from examples the number of cases denied are an obvious minority. Based on what we know from public disclosure, there is abuse. That to me states there is a good indication rubber-stamping has in fact occurred and should be reviewed. But, since it can't be...

The trustworthiness of the system is not there anymore and it has degraded to a point where most informed citizens would err on the side of saying there is something wrong. There are some grave issues that need to be addressed in short order or our government is going to push any data related industry the way of safer harbors.


"I'm not sure how anyone can has enough reasonable information to make a case that FISA doesn't rubber stamp cases."

The burden of proof is on the positive, not the negative.


I agree. The government has never proven to us that FISA works, therefore it should be shut down until such proof is forthcoming. Remember that FISA was designed to solve a problem: rogue intelligence agency actions. If it has solved that problem, then we need proof, otherwise we must assume that the problem still exists.


This is true; I don't disagree.


In fairness that runs in both directions - we would certainly be better off with some proof of FISA courts' effectiveness, even if were historical (eg declassification of past decisions from >10 years ago, or the establishment of objective criteria for declassification).


It would also help significantly if the default for their opinions not be that they are automatically classified and put the burden of proof on the government in each individual case to justify why the public shouldn't know what the law is.


Well, opsec. Spying is by definition a clandestine activity, and I think there are good arguments in favor of spying - the main one being that while it might seem nicer not to spy on anyone, you end up being less informed, and uninformed executives are more likely to end up going to war, which is a lot more destructive than spying. If you read up on the Curveball story in Iraq, that's a classic case of what happens when you make decisions with inadequate information.


You don't have to disclose the specific targets you're spying on to publish the relevant court opinions. You can redact the names and still publish what the law is.

And there is a difference between collecting intelligence on foreign governments (which I don't think anyone could ever expect not to happen) and mass data collection. Part of the problem here is that spying on "terrorist" "suspects" is so broad and poorly defined that it could encompass nearly anything and becomes nothing but a convenient fig leaf for mass surveillance.

We lump too many things under the label of terrorism. Someone with the likes of a machete or a hand grenade is distinctly a law enforcement problem rather than a national security problem and cannot justify secret mass surveillance or data collection.

Once you take all of that out and get to the actual national security threats (i.e. nuclear or biological terrorism) you end up with a completely different threat model. More to the point, you need to keep a lot less secret because instances of attempted nuclear terrorism are much more rare. You don't have to classify every court opinion related to some idiot with defective instructions on how to make a pipe bomb just because you have to classify certain methods of preventing nuclear proliferation.


You don't have to disclose the specific targets you're spying on to publish the relevant court opinions. You can redact the names and still publish what the law is.

If you have to redact all the of the relevant facts, then any statement of the law is meaningless because it's unclear what sort of fact pattern it should be applied to. I realize this seems abstruse, but the fact pattern is very important in common law judgments. You can't just say 'the law is X' and have it be portable to any other case. The opinion would read something like: 'HELD: the government may xxxxxxx xxxxx when xxxxx xxxx xxx in a xxxxx and xxxxxx.' Read some judicial opinions in normal cases and then imagine how little sense they'd make if the facts were matters of national security and couldn't be published. For that matter it's quite hard for a lot of people to understand the law in many regular criminal cases where all the details are available.

Someone with the likes of a machete or a hand grenade is distinctly a law enforcement problem rather than a national security problem and cannot justify secret mass surveillance or data collection.

9/11 only involved boxcutters, but I'd say that it presented a rather significant national security problem when those turned out to be sufficient to hijack planes and fly them into high-value targets. There's an assumption in some corners that since we're now more aware of the risks, no hijacking can ever work again, but that's not the case.

You're also ignoring the fact that many kinds of low-level terrorist activity aren't open to direct investigation by law enforcement. For example, suppose you pick up signals about a plot involving Mr X, who has not yet arrived in the US but whose phone number you have managed to identify. If he's in a country that's friendly to the US you might be able to get their law enforcement people to investigate him, but if not then it's logical to monitor who he communicates with for prophylactic purposes.


>I realize this seems abstruse, but the fact pattern is very important in common law judgments.

You're basically assuming they would have to redact everything. Just replacing names and addresses with tokens that don't identify the specific subjects would get you most of the way there unless the specific fact pattern is unique to the suspect, and then you can redact what is necessary to make it less specific.

In addition to that, once any given investigation is over the opinions and redactions that were held secret for the purposes of that investigation should be published, and it shouldn't be so easy to keep things secret for decades just by making a facile claim of national security.

>9/11 only involved boxcutters, but I'd say that it presented a rather significant national security problem when those turned out to be sufficient to hijack planes and fly them into high-value targets.

9/11 was not a national security problem. 9/11 was a mass murder. It was shocking but we have inflicted more damage on ourselves in our overreaction to it than the terrorists did in committing it. More have died avenging the victims of 9/11 than died on 9/11.

A national security threat is a nuclear bomb, or a plague, or a foreign government infiltrating high level government offices in preparation for some kind of Communist takeover. Something that would be a factor of 1000 worse than 9/11 and present an actual threat to the security of the entire nation. This watering down of "national security threat" to mean any jerk who might kill some people with an IED is just a ruse to rationalize the use of extremist measures against everyone rather than taking into account the proportionality of the threat.

>You're also ignoring the fact that many kinds of low-level terrorist activity aren't open to direct investigation by law enforcement. For example, suppose you pick up signals about a plot involving Mr X, who has not yet arrived in the US but whose phone number you have managed to identify. If he's in a country that's friendly to the US you might be able to get their law enforcement people to investigate him, but if not then it's logical to monitor who he communicates with for prophylactic purposes.

So get a warrant and conduct surveillance on him then. That's not the same thing as spying and collecting data on everyone "for prophylactic purposes" at all.


That's true, though I'm not speaking to that point at all. Rather, I wanted to prevent a debate following from someone attempting to make a point that's technically indefensible but not necessarily sound. Expressing the same point without that kind of demand ("prove this isn't happening") would be fine.

But I do agree with you - this can be applied to FISA courts' efficacy. But that's not entirely a rebuttal since it's equally valid in both cases. Saying that in response as a rebuttal would wrongly imply it's fair to demand a proof of the negative just because it's valid for FISA effectiveness as well.


The burden of proof applies to those who's liberties are infringed. If my rights are being stripped, the burden of proof should not be that I need to prove the NSA is infringing those liberties, it should be that they need to prove that they aren't. With National Security Letters, the recipients can't even acknowledge that they've received them, and with the FISA court, we have no way to know.


You missed the point.

In logic, it's fruitless to try to place the burden of proof on a negative statement. Example: "Prove there isn't an invisble ball of undetectable mass swirling in my hand."

What I was saying is a general rule that's valid across every subject in logical debate, and it is valid as a response for the sentence I quoted. What you're saying isn't a rebuttal to my point.


> In logic, it's fruitless to try to place the burden of proof on a negative statement.

That's unnecessary. We've already seen, via the leaks, that dragnet surveillance is happening. The NSA's claim that domestic communications are sacrosanct are put to lie by the revelations that the DEA and IRS are both using laundered NSA domestic surveillance data. We're now well beyond the need to prove that the government is in a state of sin with regard to the Constitution. The issue now is what remedies we'll pursue.


My point wasn't about proving a negative. More to the point there is no oversight so we don't know how bad it really is. I'm calling for some sort of protective measures and putting an end to this nonsense. The current administration is taking an ends justify the means attitude, not that they are probably the first to do so, but after being caught in lie after lie they aren't to be trusted either.


I have to take issue with the point about negative statements, surely it's no more fruitful to say "Prove there IS an invisible ball of undetectable mass swirling in my hand."

Wouldn't it be more accurate to say that it's fruitless to place the burden of proof on a statement which is syllogistically isolated from any statement known to be true?


No, it is more fruiful to say, "Prove there is..." because that's the basis of scientific/mathematical rigor. If you can prove it exists, it does. If you can't prove it exists, it doesn't, for all intents and purposes. You then act as though it doesn't, because until you can find evidence for it, it might as well be nonexistent, and you should act that way to be logical.


The problem: you can just rephrase the claim to have a positive statement. Now, If I'm to claim that the FISA is NOT effective in their role, and the burden of proof would be on you.


Yes, very true! But this isn't a problem because they're two separate things. The issue of rubber stamping and the issue of effectiveness are related but discrete problems to consider when talking about FISA courts' - whether or not they are effective does not necessarily confirm rubber stamping, though there could be a correlation.

But, yeah, I agree. It remains to be proven that FISA is effective.


"can has" -- And here I thought I proofread it. #fail


"First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis"

The FISC is called a rubber stamp because they almost never reject requests for a warrant. The government can be almost certain that no matter how outrageous its request is, FISC will say "yes." That they may be evaluating requests on a case-by-case basis is irrelevant if they always come to the same conclusion.


> The FISC is called a rubber stamp because they almost never reject requests for a warrant.

Given that they initially provide feedback when they have problems rather than outright rejection, and that the government can, if it isn't willing or able to address the feedback, simply withdraw the application, its not entirely surprising that they don't issue rejections, per se, nor does that necessarily indicate that they are acting as a rubber stamp.

We'd probably get a better picture of whether they were a rubber stamp if they were required to give a rejection with comments if the application wasn't sufficient on its face, and we had statistics on that.


I disagree that this argument involves a fallacy. The following statements are not equivalent:

1. It seems like at that point it should deny every single request going forward until the illegal activities have stopped.

2. Every request going forward is illegitimate.

(2) is false, but I believe that (1) is plausible, especially if there are any difficulties for FISA to determine whether any particular NSA request is legitimate or not.


I think that they are; if you're sufficiently convinced of 1), then 2) follows as a matter of logic.


Not necessarily. The court can do (1) in order to punish the government for not complying, similar to excluding improperly obtained evidence that would otherwise be relevant.


Only if you define "legitimate" so that what you say is tautological; not if "legitimate" means, for example, "concerning a targeted and specific terrorist threat".


They don't rubber stamp warrants because there are no warrants. See the XKEYSCORE presentation. They just need a loose reason that the person may or may not be affiliated with a foreign entity by up to five degrees of separation.


Your argument is with the GP, not with me.


Any "civil officer of the United States" can be impeached. In fact, judges are the majority of officials that have been successfully impeached. Calls for impeachment are more often frivolous than they are serious though.

How do you know the court has continued to rubber-stamp the activities it considers unconstitutional?


How do you know they haven't?


One FISA judge ruled that one particular program (or perhaps part of one particular program) was unconstitutional. I don't believe we know any of the following:

1. Whether or not that is binding precedent on other FISA judges.

2. Whether or not that program (or that aspect of that program) continued after the ruling.

3. If it did continue, whether or not it was modified to address the concerns of that one judge.


It's a matter of official policy to include legal loopholes that enable the Federal government to assert its power rather than comply with the law.


"Bernard, the Official Secrets Act is not to protect secrets, it is to protect officials."[1]

[1] Sir Humphrey Appleby, Jobs for the Boys (e/o "Yes Minister"), Jay A and Lynn J, BBC; first broadcast April 7, 1980.


I don't know about UK law, but that behavior is in direct contravention of of the executive order establishing the classification system.

"In no case shall information be classified ... in order to conceal ... administrative error; prevent embarrassment ..."

See section 1.7(a) of http://en.wikisource.org/wiki/Executive_Order_13526


I'm curious what you mean when you say "official policy". Did you mean, that's how the machine works, people will always find/create loopholes.

Or did you mean there is a technical provision somewhere that somehow mandates the existence of such loopholes?


Catch22


This would be an interesting fodder for case studies... Any empirical examples for benchmarking?


Take my advice with a grain of salt, but I think asking for legal analysis from Hacker News is like asking for technological analysis from Seeking Alpha.


> If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants?

The issue is releasing an order in which they found some collection that the government engaged in under section 702 minimization procedures violated the Fourth Amendment, not that the program as a whole did so. Presumably, the situations in which it found that would not be the same ones for which it approved warrants.


>It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling.

Unable to be aware of the current secret case law history, addressing the FISA secret court, is it intellectually dishonest to still say, `Your Honor?'"


Buy stock in whatever company the DoJ buys their black markers from.


If momentum builds behind an internet blackout a-la the SOPA protest, that'd be a clever way to do it.. write some js/css that black-marker-redacts the page contents.


Best I can do for hacker news. You'll have to copy it into your browser's javascript console, or prepend javascript: and save it as a bookmarklet.

Array.prototype.slice.call(document.getElementsByTagName('font')).forEach(function(i){i.innerHTML = i.innerHTML.split(' ').reduce(function(acc, cv, i, a) {if (i % 5 == 0) return acc + '<span style="background-color: black;">' + cv + ' </span>'; else return acc + cv + ' '; }, '');})


Reddit already has that for spoiler alerts.


I believe it is just some subreddit css that implements that effect.


Can anyone turn this lawyer speak into something the layman tech person can understand, please?


They will release a redacted version of the opinion in question, and a redacted version of exactly one paragraph from a classified whitepaper given to congress on it. In both cases, how redacted they will be is up in the air.

They requested an extension until August 21st to do this (original deadline was August 12th). The EFF "reluctantly did not oppose this"


It's really unfortunate that secret courts aren't unconstitutional. You would think that one should have been obvious.


Article III of the constitution is amazingly brief. It doesn't even explicitly create the supreme court's power to determine constitutionality.


> It's really unfortunate that secret courts aren't unconstitutional.

The Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review aren't secret courts.

Their proceedings may be invariably be secret because of their subject matter, but the proceedings of regular federal courts may be, too. The difference is that the FISC and FISCR deal exclusively with issues that are handled in secret, but there is no principle that would prohibit them as "secret courts" that wouldn't also prohibit all sealed proceedings in the other federal courts.


the US can always pass a new amendment. (I mean, if you can persuade the legislature.)


> They requested an extension until August 21st to do this (original deadline was August 12th).

I don't get it; how long could it possibly take to redact such documents? Is there somebody toiling 8 hours a day for 7 or 8 more days, scrambling to get this done in time? Or are they lazily just sticking it on the backburner of some intern?


They're probably carefully going over the specific legal interpretation of every word, phrase, and sentence being released in order to cover their own asses legally and politically.


There's probably some fighting going on about what exactly should be redacted or preserved.


Hmm, that makes sense.

Not really knowing what sort of thing information is in court decisions, what is likely the sort of thing that will be redacted? Names of example programs/agents/terrorists I guess? I don't know if it would make sense for that sort of thing to be in the decision. Or are they likely going to redact more than just supporting information?


Much like the secret court order, with secret bits being removed, you don't really ------------ ------- ------------ - ----. And lets face it - the ----.


According to the document they've had to involve some senior people in deciding what to redact and there are only a few people in government with the expertise in the relevant issues. My guess is that the redaction involves at least two agencies (DOJ and NSA) and there's communication overhead.


"Ok. You win. Give us a few more days to redact the hell out of the opinion, and then we'll give it over to you."


Yes please, what are the implications of this release?


Hard to tell since the details have been kept secret, but the FOIA request is for any order or opinion of the court on whether any 702 minimization was done unreasonably or whether any any 702 authorities have been used to circumvent the "spirit of the" law, and also for any briefings supplied to congress.

Since we now know that there is at least one such opinion, this will at least shine some sunlight on it so we can see the extent of the "circumventions" and how strongly the court dealt with it. If anything, it may show how firmly the court pursues its oversight responsibilities.


It's not difficult language and I think what you really want to ask, without asking, is does anyone have a TLDR? At least that's what I'm asking because the PDF on my iPhone is on the fritz.


You feel it's not difficult language to non-lawyers, but you physically can't read the text because your phone is broken? How would you know?


At a point in our nation's early history, we decided to trust Constitutional interpretation to the Supreme Court. There were cons to that decision - the Constitution is our social contract and thus it's interpretation is ultimately up to the people - but on the whole I think it was a good one.

But, if for whatever reason, this Judicial review cannot occur - whether that be willful avoidance by the DEA for "Parallel Construction", or various activities related to the FISA Star Chamber - that's a problem that needs to be solved, lest the constitution lack any enforcement ability whatsoever.


Well, when the NSA is spying on and potentially blackmailing the Supreme Court itself, then it really doesn't matter.

Watch this vid with Siebel Edmund's where she says that the NSA has basically just extended to a massive degree the level of blackmail that intelligence has used since the days of Hoover.

The 4th branch.

https://www.youtube.com/watch?v=Pc3esnkqM7E&feature=share


Watch this video at around 22 minutes, http://topdocumentaryfilms.com/kill-the-messenger/

Dear Mr Obama - please explain why we are REPEATING the same thing. Shame on you if you fool us once, shame on us if you fool us again...

I was shocked when I watched this video. It's all happening again...


The correct assumption is the more some politician supports the NSA, the dirtier stuff they have to blackmail them with. I wonder what Pelosi's secret is?


> At a point in our nation's early history, we decided to trust Constitutional interpretation to the Supreme Court.

I don't think we did.

We gave the federal judiciary responsibility, within the government, for resolving cases and controversies arising under the federal Constitution and laws, including, inter alia, questions cases and controversies involving disputes over whether a government act was consistent with the Constitution (we did that, incidentally, at the point when we ratified the Constitution.)

However, that in no way makes the Supreme Court exclusively responsible for interpreting the Constitution, the President is also given a duty to preserve the Constitution and see that the laws are faithfully executed, and that duty requires interpeting the Constitution even when there is no legally cognizable case or controversy for the judiciary to decide.

And Congress, of course, has both powers and obligations under the Constitution which require it to interpret the Constitution -- again, even when there is no legally cognizable case or controversy for the judiciary to decide.

And, ultimately, the whole system relies on the people interpreting the Constitution and holding those in government office accountable to it, whether there is a legally cognizable case or controversy for the judiciary to decide, and whether or not the judiciary is willing to do its duty properly when such a case or controversy exists.


The idea that the interpretation of the Constitution is up to the people sounds like a good idea; however, how exactly would that work in practice?

We obviously can't just let each individual interpret it how they see fit, or it becomes effectively meaningless. It would be equally impossible for each Constitutional question to be 'voted' on by the people.

Is there a way I am missing? It seems the courts are the only logical choice to interpret the Constitution.


> The idea that the interpretation of the Constitution is up to the people sounds like a good idea; however, how exactly would that work in practice?

The people individually would decide what the Constitution means, and they would -- having made those decisions -- individually and collectively act to hold incumbent officials and candidates accountable to those interpretations through voting, public advocacy, protests, and, in extreme cases, direct action.

> We obviously can't just let each individual interpret it how they see fit

Not only can we, but we really have no other choice; whether we like it or not, each individual will do that, even if "how they see fit" is to delegate the interpretation to some individual authority, or the collective wisdom of the rest of the population.


Great post. I think my central point is that it's dangerous for a democratic society to believe that nine robed Brahmins are the only people qualified to interpret it.


I think courts are the logical choice but I don't think it's ideal that the only way you can get Constitutional questions decided is by getting screwed by an Unconstitutional decision already made somewhere and then getting it overturned, or by having the government try to Unconstitutionally beat you over the head and winning your case.


Congress must take seriously the idea that upholding the Constitution is a central duty, and that the existence of the Supreme Court does not in any way eliminate that duty.


The other (albeit largely theoretical) possibility is a Constitutional Convention.


The people are trusted with the interpretation of Constitutionality and government legitimacy through Article I, Section 2, Paragraph 1, Article I, Section 3, Paragraph I (as amended), Article III, Section 2, Paragraph 3 of the US Constitution, Article VI of the Constitution, The First, Second, Fifth, Sixth, and Seventh Amendments to the Constitution.


Exactly. The doctrine of judicial review wasn't even part of the original plan.


> The doctrine of judicial review wasn't even part of the original plan.

This is frequently stated but borders on nonsense. The framers could not have failed to understand that to resolve cases and controversies arising under the Constitution, the federal judiciary would necessarily have to resolve cases and controversies where the question was that an act of Congress was inconsistent with the Constitution.

Certainly -- many of them being practicing lawyers -- they would understand that courts resolving legal questions first have to determine what the controlling law is, including resolving apparent conflicts between different laws by reference to various principles as to which laws take precedence.

"Judicial review" is just the name given to regular process of legal construction when, in addition to the canons of construction that were established prior to the Constitution, the principle of "the Constitution trumps all other enactments" is added.


Let me guess, this will be used as a way to legitimize the FISA court. Nothing to see here - move on. See, your rights are being protected.


The FISA court that's been around since 1978? There's entire major commands of the military that have been created and then killed again in the time FISC has existed, seems pretty legit to me.


Is there some sort of bat signal we can use to get grellas to this thread?


This is actually really, really great news, and I'm really impressed that we're changing direction so quickly. This is a huge bureaucracy, and softening even this much in a few short months is an amazing thing. I see this as a very hopeful sign that we'll get back on track - just more slowly than anyone (including myself) would like it to go. But it's a nation of almost 400 million people and crazy complex body of law to deal with: nothing changes on a dime.


I think we're going to get a bit of data, and say, good job guys, we did it! ... and nothing changes.


Time to do the Obama Shake: http://i.minus.com/iwOSyasN8lziO.gif


As I referenced in another thread, Obama himself voted for the FISA amendment[1].

How clearer must it get that people working for companies like AT&T and Booz Allen are complicit in receiving monetary remuneration for collaborating with various arms of the government in circumventing/intel laundering/routing around the laws and regulations said arms of the government were to be checking each other against?

Must there need be more details of local law enforcement letting Steven Seagal maraud around in federally sourced tanks? Booz Allen assisting local law enforcement in copyright prosecutions? Drone managing SAIC running private monitoring centers with federal fusion center support?

AT&T workers NOT going along with what management puts forward, revealing secret closets instead. Or services shutting down to prevent such hardware from ever being installed?

The US government, all branches, are corrupt by being complicit in each others deeds. Together along with employees within corporations that collaborate with the US government, law is being undone or outright ignored.

Refuse, resist.

[1] H.R. 6304 (Foreign Intelligence Surveillance Act of 1978 ) Obama (D-IL), Yea: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...


I don't think the world is so black and white.

If you pay taxes to the federal government are you complicit with all of the government's actions? Well sure, but what other option do you have? You could not pay taxes and go to jail, or you could move somewhere else where there isn't an imperfect government--- say Antarctica.

Similarly, what are you going to do if you decide not to work for some "complicit" organization? Move to Silicon Valley and work at a startup? Is that any better? Is there any company that is morally and ethically perfect?

Governments, industries, populations, etc. are all part of an inter-related system called The World. If you think this system is imperfect and should be improved, then exiting the system won't solve anything. Rather, you can work within the system and do what you can to make it better.


I never said anything was black and white, just that a very large amount of people have become complicit in what they acknowledge as wrong-doings.

As to working within the system, attempting to halt or mitigate what you view as malfeasance is indeed not complying. Merely suggesting though, that people are working within doesn't do much in the face of the number of those working for without care or question.

Yes people have to make the choice of being complicit or face going to jail in some cases. Most just need to stop defending their profiting from the murder/kidnapping/torture/rendition/detention/prosecution of others. Providing infrastructural support like telecommunications is indeed an enabler for industries like drone warfare.

It's called "The World" as you put it.


I think you should eat brussel sprouts. My opinion entitles me to publicly deride you for failing to meet your moral imperatives. To do anything else makes you complicit in the great evil intrinsic to non-brussel sprout consumption.

I am a one dimensional human being who can easily assess the complexities in your life, so we're cool with this broad statement, right? There's clearly no other reasons you could be avoiding brussel sprout consumption.


What moral imperatives were implied?


I'm sorry- perhaps I misunderstood. I thought you were suggesting that anyone who works for these companies MUST somehow be complicit in these encroachments by the government.

If that's not the case, I think you're cool on not eating your brussel sprouts.


After being informed nearly daily of how one's work assists another in their deeds, then continuing to accept salary, it is compliance and complicity.

Others have shown they do not need to comply, to various ends. Snowden[1], Klein[2], Manning[3], Barrett[4], Levison[5]. This is a terribly narrow range of those who refused and resisted in recent history. From admin to technician to analyst to activist to owner, you can indeed not become complicit with the US government or others after learning knowledge of malfeasance.

Please leave the poor sprouts out of this.

[1] http://en.wikipedia.org/wiki/Edward_Snowden

[2] http://en.wikipedia.org/wiki/Mark_Klein

[3] http://en.wikipedia.org/wiki/Bradley_Manning

[4] http://en.wikipedia.org/wiki/Barrett_Brown

[5] http://en.wikipedia.org/wiki/Lavabit


When violent revolution is around the corner, I will buy this argument. The deficiency in your position is that it assumes change cannot happen from within.

Additionally there are great things that these companies do in spite of government intervention. If these services were abandoned, peoples lives can be put at risk.

Your arguments only make sense if the country is on the verge of revolution. Given the ratings on TV, and the velocity of posts on /r/advice animals, I don't think were there yet.


You assume that I made that assumption, that is wrong.

My position is those attempting to cause change from within have while at work helped give inertia and acceptance to what they think they want to fight against while at home watching the evening news.

Nothing stops them from finding other venues of employment, many excuses are made as to how they want to fight from within. We end up with users on forums attempting to defend their profiting from the entire ordeal. Complicit.

Essentially I am saying working from within is only a good choice for those who find themselves already in that position, like Snowden. Otherwise more harm is done.


Then we are in disagreement. People on the inside are the only ones who can make meaningful change.




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