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Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

politico.com

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Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#101

Post by xxpor »

zucker42 wrote: post #99
ardy42 wrote: post #54

Earlier quoted context omitted.

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no highe…

> unconstitutional ex-post-facto punishment This point makes no sense. A properly passed amendment to the Constitution (presumably what is meant by update) can never be unconstitutional by definition. Furthermore, prohibiting ex-post-facto laws means you can't pass a law which criminalizes actions in the past. But courts don't pass laws, they interpret them. There's plenty of cases where courts interpret a law in a n…

>But courts don't pass laws, they interpret them.

This is a common misconception. Courts don't pass statutes, but they certainly create law. Nearly every ruling from any sort of appeals court answers a question of law which is then binding on everyone under the jurisdiction of said court.

This is the essential difference between a common law and civil law system. There are still rulings in the US that cite old English cases from before 1776 as the basis of the law in this country.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#102

Post by mLuby »

dn3500 wrote: post #93
_8j50 wrote: post #6

You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. The US constitution needs lots of updates but this maybe the most important item -- manadatory prison terms for anyone acting…

You know what I don't get? Why is Edward Snowden, who exposed these crimes, being treated like a criminal?

He knowingly and clearly broke laws by stealing and disclosing classified information. I think he was ethically correct to do so, and his act qualified as civil disobedience, but that's why the US government is after him.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#103

Post by xxpor »

DennisP wrote: post #70
ardy42 wrote: post #54

Earlier quoted context omitted.

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no highe…

Seems like the courts could make a distinction between "ok this was unclear" and "this was obvious, egregious and deserving of penalties." And while throwing Congress in jail seems unworkable, disqualifying members from reelection in egregious cases might be doable (though of course it would require a constitutional amendment).

This is essentially the qualified immunity debate. SCOTUS has decided that unless the government defendant did something that SCOTUS in the past has specifically ruled is unconstitutional, you don't get to win a ruling against them. Where specifically is defined exceptionally narrowly.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#104

Post by boogies »

krapp wrote: post #85
ColanR wrote: post #78

Earlier quoted context omitted.

> because there's no higher authority to appeal to for enforcement Technically, that higher authority is the people themselves. Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles.

>Bear in mind that the Constitution was written in a context where the governed people successfully held their government accountable at the business end of their hunting rifles. No they didn't, look up Shay's Rebellion and the Whiskey Rebellion as examples. The US government has never been successfully "held accountable" at gunpoint.

One terrorist at least disagreed: https://en.wikipedia.org/wiki/Oklahoma_City_bombing#Impact_a..., and considering his arguments context (https://en.wikipedia.org/wiki/Ruby_Ridge) I think there was a grain of truth to his claims (though they don’t justify killing babies of course).

(The Oklahoma City bombing was the biggest terrorist attack next to 9/11 and yet never discussed in any history class I’ve taken, while the latter is discussed in virtually every class on any subject on its anniversary. Probably an interesting reflection of xenophobia (probably among other things) I think.)

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#105

Post by sitkack »

ardy42 wrote: post #54
_8j50 wrote: post #6

You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. The US constitution needs lots of updates but this maybe the most important item -- manadatory prison terms for anyone acting…

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no highe…

Whaaaa?!

> because there's no higher authority to appeal to for enforcement.

Then we do not live in a democracy with a rule of law. Why have the constitution at all?

Barring weasel lawyering and issues around standing. The very idea that you would claim these violations are not punishable means that they will continue to occur.

I am having a hard time fathoming how you take this stance at all.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#106

Post by ardy42 »

heimatau wrote: post #89
ardy42 wrote: post #54

Earlier quoted context omitted.

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no highe…

> If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense. Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.…

>> If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense.

> Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.

Huh? You're right that the Constitution defines the social contract, but it's still nonsense that violations by branches of the government itself should result in jail time. Checks and balances is supposed to ensure compliance, and honestly any attempt to add jail time to the mix would probably have all kinds of disastrous consequences to the balance of those checks. If this governmental system is to by dynamic enough to survive, its parts need the ability to probe the boundaries as needed. That can't happen if the people who make them up are paralyzed in personal fear of being jailed for a misstep. The framers themselves recognized that, since the Constitution isn't full of threats of criminal penalties. Even impeachment is deliberately just a removal from office.

> It's not a document of 'norms' and 'procedures'. It's a structure of how our Republic is built.

It's both of those things. If all the branches of government conspired to violate the Constitution, all that would happen is the country enters into an undefined state. If they were willing to do that, do you think they'd enforce penalties of jail against themselves for their violations? The Constitution itself isn't going to leap out of its case to arrest them.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#107

Post by ColanR »

xxpor wrote: post #100
heimatau wrote: post #89

Earlier quoted context omitted.

> If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense. Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.…

>Either our founding document matters as the backbone of our Laws or it doesn't. Nitpick, the constitution isn't a founding document. There was that whole Articles of Confederation thing. Congress isn't the final authority of if laws are constitutional or not. The courts are. Congress and the Supreme Court commonly disagree on the constitutionality of laws. What you're proposing is essentially a oligarchy lead by the…

> No regular people voted on the Constitution.

Nitpick. The people who were sent as representatives from each state to help write and ratify the constitution were chosen by the people of that state. So technically, through representative democracy, the regular people did agree to the constitution because their representatives agreed on it.

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#108

Post by sitkack »

kebman wrote: post #97
ardy42 wrote: post #54

Earlier quoted context omitted.

> You know what I don't get? There is no penalty for violating the highest law of the land (the constitution). How is it anymore than a suggestion or a guidline if government officials are not punished for violating it? And that is exactly how lae enforcement and intelligence community treat it. It's because it can't reasonably work like that. At a certain point, defining punishments is moot, because there's no highe…

This is an interesting concept. In Norway, the parliament cannot pass contradictory laws, for instance, for the simple reason this tenet: "All power must be gathered in this hall". So in essence, Stortinget (our parliament) cannot pass laws that give power away, for instance. Doing so would be unconstitutional, also because our constitution explicitly states that power shall not be given away. Yet it has happened, bu…

Congress tries and mostly succeeds in doing this all the time.

https://clintonwhitehouse2.archives.gov/Initiatives/FastTrac...

https://en.wikipedia.org/wiki/Fast_track_(trade)

When was the last time the us congress actually declared war (their job)?

Re: Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal

#110

Post by ColanR »

ardy42 wrote: post #106
heimatau wrote: post #89

Earlier quoted context omitted.

> If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense. Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contract.…

>> If the Constitution says "Congress shall make no law..." and Congress still makes a law, what are you going to do, throw Congress in jail? That's nonsense. > Actually, it's nonsense to think anything to the contrary. Either our founding document matters as the backbone of our Laws or it doesn't. Your outlandish logic nullifies any power that the government may have over it's people. It nullifies the social contrac…

> If they were willing to do that, do you think they'd enforce penalties of jail against themselves for their violations? The Constitution itself isn't going to leap out of its case to arrest them.

The people will, though. As I mentioned elsewhere, the final authority in the US are the people who chose their representatives in the government. If the highest level of government decides to break the law, then the people themselves enforce it.

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