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Federal Judge Finds National Security Letters Unconstitutional, Bans Them

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Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#51

Post by anigbrowl »

Osiris wrote: post #9

One of the main points of the U.S. constitution is to provide checks and balances so that one branch of government cannot ac t unilaterally without oversight. For the executive branch to argue that in this case there is no way to challenge it is disingenuous at best and at worst, as this judge pointed out, unconstitutional. It's frustrating to me as a citizen that if a government agency decides it has a problem with…

Realistically, you are just as screwed if any large organization launches a civil suit against you. Congress frequently produces laws that attempt to mandate the behavior of the Executive branch* while excluding that behavior from judicial review (which courts do not take kindly to and frequently dismiss).

A lot of legislators do not like the Judicial branch and consider it to be an annoying restraint on their lawmaking power; what looks like tension between the Executive and Judicial branches is often as not a proxy for Legislative claims. Whenever you see a piece of legislation with phraseology like '[officer of some executive branch agency] shall do x, y, z, in the following fashion...' pay attention to the word shall. In law this is understood to make the action mandatory, and where the law is very specific on procedures and actions it's basically an attempt to micromanage the operation of the agency in question.

Consider the following imaginary law:

If any person wears white after Labor Day, the head of the Fashion Police shall cause that person to be arrested and fined $1,000. This procedure shall not be subject to judicial review.

Now if you're the Fashionista-general, you have no choice but to arrest people wearing white after Labor Day [for non-Americans, wearing white after late September is jokingly regarded as an offense against good taste]. Failure to do so clearly violates the oath of office required of office-holders in the Executive branch. And the same law says that you don't get to complain about this in court, so judges are supposed to dismiss your case without even giving it a hearing. That will make people mad with the Fashion Police and frustrated with the Courts, even though the blame for this law lies with the Legislature.

Here's an example of a real law that operates this way, from a current immigration statute: http://www.law.cornell.edu/uscode/text/8/1252

Note section (a)(2)(A)(i): the law applies to people who receive orders of removal, aka deportation orders (a); it's explicitly not subject to judicial review (2)(A); and the procedures for dealing with individual cases are very narrowly specified in the section linked to from clause (i), with a lot of detail specifying how people shall be categorized and treated.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#52

Post by Cushman »

Shivetya wrote: post #49
KoulMomo wrote: post #37

Earlier quoted context omitted.

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

The real tragedy is the free pass the press gives him, if Bush had pulled this, the drone hits, fast and furious, and more, we would have at least had the press on our side. I can, but don't have to accept, members of his own party turning a blind eye, I will never accept a press which has.

I don't see it. Bush started a literal war of aggression with press support; we're supposed to expect them to get up in arms over a few assassinations?

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#53

Post by guelo »

anigbrowl wrote: post #40
mmastrac wrote: post #6

This part is a big WTF: "After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority."

This is exactly what's supposed to happen; the DoJ brought the dispute to the judicial branch and asked a court to resolve it, as opposed to arresting people or seizing control of the assets. They didn't seek the breakup of the company or the arrest or ruin of its officers, they asked the court to require compliance with what they believed to be a valid request in the form of the NSL. The court sided with the defenda…

Wrong. The telecom's suit is the challenge that you're talking about. The second suit claims that the first lawsuit is illegal. It would mean that you're not allowed to challenge the government in court. It would make your flowery language invalid.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#54

Post by jtc331 »

anigbrowl wrote: post #40
mmastrac wrote: post #6

This part is a big WTF: "After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority."

This is exactly what's supposed to happen; the DoJ brought the dispute to the judicial branch and asked a court to resolve it, as opposed to arresting people or seizing control of the assets. They didn't seek the breakup of the company or the arrest or ruin of its officers, they asked the court to require compliance with what they believed to be a valid request in the form of the NSL. The court sided with the defenda…

Clearly you didn't read the article. Asking the court to require compliance would have meant that they would have filed a response to the telecom's suit and made the claim that the NSL was warranted and that the suit should be thrown out.

Instead they're claiming that the mere act of filing suit is in itself illegal.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#55

Post by jtc331 »

ericd wrote: post #47
r00fus wrote: post #36

Earlier quoted context omitted.

The depressing part is realizing that Obama is actually the lesser of two evils (two elections running), and that worse could be happening right now in terms of rights erosion and increase in security-state. There is no left-wing remaining in power in this country. You only have corporatists and reactionary extremists corporatists.

It seems as though you may need to be a corporatist to raise a war chest comparable to the corporatists. It seems like the logical/natural steady state of elections with deregulated campaign finance...

Just something to chew on: I think you've set up a false dichotomy. It is also possible that the problem is not deregulated campaign finance but rather the increasing shift away from a constitutional republic form of government to a democracy.

One of the big benefits of a republican (small "R", not the party) form of government is that it's far more difficult to buy off because at conventions each delegate (which are generally grass-roots involved people who have no financial incentive) has the same influence regardless of which candidate has the most money.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#56

Post by jtc331 »

bmelton wrote: post #48
brown9-2 wrote: post #44

Earlier quoted context omitted.

What civil liberties have been eroded?

He extended the PATRIOT act, is potentially skirting the fifth amendment, and is trying to seriously infringe the second amendment. Edit: If you disagree with my assertions, you can make your own informed opinion based on this data: http://www.politifact.com/truth-o-meter/promises/obameter/su...

He also signed into law a further restriction of the 1st amendment; it's now legal for the secret service to a.) be sent to guard any arbitrary person and b.) to arrest anyone demonstrating (like just holding a sign) within a specific distance from said protected person.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#57

Post by 001sky »

anigbrowl wrote: post #40
mmastrac wrote: post #6

This part is a big WTF: "After the telecom challenged the NSL, the Justice Department took its own extraordinary measure and sued the company, arguing in court documents that the company was violating the law by challenging its authority."

This is exactly what's supposed to happen; the DoJ brought the dispute to the judicial branch and asked a court to resolve it, as opposed to arresting people or seizing control of the assets. They didn't seek the breakup of the company or the arrest or ruin of its officers, they asked the court to require compliance with what they believed to be a valid request in the form of the NSL. The court sided with the defenda…

This is exactly what's to happen, the DoJ brought the dispute to the judicial branch...

-- Nah. DOJ was trying to judicial review. Contra separation of powers, per constitution, etc.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#58

Post by jtc331 »

KoulMomo wrote: post #37
dreamdu5t wrote: post #32

Earlier quoted context omitted.

That's incredibly alarming. This is Obama's justice department too, headed by people he personally appointed.

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

The irony is that their argumentation in court is identical to that of the Bush DOJ.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#59

Post by anigbrowl »

Shivetya wrote: post #49
KoulMomo wrote: post #37

Earlier quoted context omitted.

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

The real tragedy is the free pass the press gives him, if Bush had pulled this, the drone hits, fast and furious, and more, we would have at least had the press on our side. I can, but don't have to accept, members of his own party turning a blind eye, I will never accept a press which has.

http://en.wikipedia.org/wiki/Drone_attacks_in_Pakistan#Stati...

http://en.wikipedia.org/wiki/ATF_gunwalking_scandal#2006.E2....

Note the dates. In fairness to the press, it's not surprising that the firs 5 years of drone strikes received little press coverage, because we had become involved in a much larger war in Iraq. I'm somewhat tolerant of drone strikes; all told they seem to have killed about 3,200 people at the highest estimate, which sounds bad until you consider lowest estimate for the Iraq war is 110,000 deaths, of which over half are civilians. The median estimate is about double that.

Drones are sort of scary for a variety of reasons, but there is at least some basis for fighting that conflict (directly responsive to 9-1--2001 attacks) and the casualties from done warfare are a fraction of those from conventional warfare, by about 2 orders of magnitude.

Re: Federal Judge Finds National Security Letters Unconstitutional, Bans Them

#60

Post by trotsky »

rayiner wrote: post #24
mtgx wrote: post #14

Earlier quoted context omitted.

So then we should hope this goes to the Supreme Court so it can be upheld there and applied everywhere? Or will most smaller courts apply it in other districts anyway, if the 9th Circuit upholds it?

It really depends. For politically controversial stuff like this, lower courts ten to be skeptical of out-of-Circuit decisions, especially out of the 9th, which has a reputation for being lala-land. If it were something mundane, or the circuit was say the 2nd rather than the 9th, then district courts elsewhere would probably consider the decision fairly persuasive, absent a contrary decision in their own circuit. But…

The ninth alone might prove rather interesting given the number of non-traditional communications providers operating there.
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