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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

#91

Post by mrich »

rayiner wrote: post #10

Great work by the EFF here. There is a delicate balance between the power of the executive and the power of the courts and trying to chill the telecom's access to the court system by claiming that the company was interfering with an investigation by challenging the NSL is a deeply troubling action. Abuses can be fixed, but not if they can't be challenged in court.

Kudos also to the unnamed telecom company that went out of their way to fight this, and the EFF for fighting the good fight. Don't forget to donate to them.

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

#92

Post by parasubvert »

kyboren wrote: post #79
sixQuarks wrote: post #70

Earlier quoted context omitted.

Well,the fact that the president now has the right to kill an American citizen with no due process is a pretty good example.

The president now asserts the right, but he does not actually have it. If our ossified judicial system has any remaining merit, he will (eventually) be called to account for his unlawful use of military force--assuming his successor doesn't pull a Ford and pardon him. EDIT: Good point.

How about the unlawful use of torture by the prior regime? This stuff goes back a ways, are you going to put every living former commander in chief on trial?

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

#93

Post by anigbrowl »

icelancer wrote: post #78
eurleif wrote: post #73

Earlier quoted context omitted.

Precedent is not the same thing as constitutionality. How is that possibly constitutional?

Maybe it isn't, but that is not for the DoJ to decide.

Exactly - and such legislative overreach is often rebuked and/or set aside by the courts. But legislation is not required to be pre-certified as Constitutional before it is passed by Congress or signed by the President. This is probably a good thing, because otherwise it would be much more difficult to bring challenges on unforeseen grounds that manifested after the legislation had gone into force, and you'd have a legislative dictatorship.

As for the DoJ, my understanding is that as an executive branch agency it has the obligation to make the most of its power to execute the laws on behalf of Congress. The amount of discretion available to the Attorney-General varies from law to law; the executive can't just abdicate its own power.

Now, the Obama administration has filed briefs arguing that the Defense of Marriage Act is unconstitutional for the upcoming case in the Supreme Court. Isn't that the exact opposite of what I'm saying above, you might ask? My answer to that would be no, because in the meantime it is still implementing DOMA; for example, by forbidding gay couples to file taxes as a married couple even if they married under state law. If I were married to a partner of the same sex, and we filed a joint tax return, the IRS would write back and say 'you can't do that.' If I then sued the government, they would be obliged to defend the suit and stand up for DOMA until such time as the Supreme Court overturns it (if they ever do). The administration's brief to the Supreme is a non-binding policy suggestion about how the constitution should be interpreted, which the Justices may choose to ignore. The administration's brief in my hypothetical lawsuit against them would be arguing for the application of the law as it currently stands, not as the administration might wish it to be.

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

#94

Post by rayiner »

white_devil wrote: post #72
tomkinstinch wrote: post #68

Earlier quoted context omitted.

> It would mean that you're not allowed to challenge the government in court. IANAL, but is it not true that you can only sue the government to the extent that it lets you? Can a lawyer chime in on the extent of sovereign immunity?

> IANAL, but is it not true that you can only sue the government to the extent that it lets you? It doesn't really matter what laws say about that. Your only recourse against wrongdoing by the government is the justice system run by the very same government . It's certainly within its power to decide not to punish itself . This is perhaps something to think about.

The government isn't a monolithic entity. It's composed of people who have often differing interests to each other. The justice system is run by the government, but that didn't stop e.g. the Supreme Court from ordering the bush administration to give process to the Guantanamo prisoners (and the administration complied!)

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

#95

Post by saalweachter »

kyboren wrote: post #79
sixQuarks wrote: post #70

Earlier quoted context omitted.

Well,the fact that the president now has the right to kill an American citizen with no due process is a pretty good example.

The president now asserts the right, but he does not actually have it. If our ossified judicial system has any remaining merit, he will (eventually) be called to account for his unlawful use of military force--assuming his successor doesn't pull a Ford and pardon him. EDIT: Good point.

Also, it was Gerald Ford that pardoned Nixon.

LBJ was the successor to Kennedy.

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

#96

Post by anigbrowl »

nwzpaperman wrote: post #81
skore wrote: post #77

Earlier quoted context omitted.

> Regulated campaign finance...who writes the rules? Ideally, > the people I think the "people -> government" relationship is broken in the US and I'm not sure whether all the "blood of patriots and tyrants" talk helps or hurts that.

Well, the US is a Republic and not a democracy. Even in the case of a direct democracy, should we have 50.1% deciding for the 100%? If only it were a trivial game it would be an easy answer! Quoting Jefferson isn't a call to action, but a call to remember those words, the context and the inspiration. It's insightful to remember that Jefferson was the founder of a third-party known as the Democratic-Republicans. As mu…

Quoting Jefferson isn't a call to action

But it sure makes you sound like a man of action!

Two political Sects have arisen within the U.S. the one believing that the executive is the branch of our government which the most needs support; the other that like the analogous branch in the English Government, it is already too strong for the republican parts of the Constitution; and therefore in equivocal cases they incline to the legislative powers: the former of these are called federalists, sometimes aristocrats or monocrats, and sometimes tories, after the corresponding sect in the English Government of exactly the same definition: the latter are stiled republicans, whigs, jacobins, anarchists, disorganizers, etc. these terms are in familiar use with most persons."

- Jefferson in 1798 - you'll note that he was arguing that the republicans of his day were insufficiently democratic, rather than the other way round.

As much as people think the world is different, the difference is really only technologically. Instead of stealing horses, people steal cars. Instead of bootlegging liquor, people run marijuana. Instead of slave masters, we have human resources.

Well, there's a slight qualitative difference in that if you quit your job, HR can't come after you and compel you stay in it. Your creditors may sue you for everything short of the shirt off your back, but you can't be forced into servitude.

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

#97

Post by rayiner »

tomkinstinch wrote: post #68
guelo wrote: post #53

Earlier quoted context omitted.

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.

> It would mean that you're not allowed to challenge the government in court. IANAL, but is it not true that you can only sue the government to the extent that it lets you? Can a lawyer chime in on the extent of sovereign immunity?

That's true, but:

1) that doesn't prevent you from asserting defenses if you are sued; 2) the government's actions can effect a waiver of immunity in specific cases; 3) the government has waived immunity by statute in a very broad range of situations; 4) it doesn't stop you from suing government officials in their personal capacity.

For example, if the government breaches a contract with you, you can sue it because the government has broadly waived immunity in contracts cases. You can sue federal agencies for their actions under the Administrative Procedure Act. As an example of (4) see: Bivens v. Six Unknown Named FBI Agents.

Also, habeas corpus offers a way to challenge actions that result in detention without needing to sue the government per se.

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

#98

Post by anigbrowl »

belorn wrote: post #82
anigbrowl wrote: post #59

Earlier quoted context omitted.

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 th…

It still doesnt make it right, nor is it any sane or logic reasoning behind the drone use. Ever time I hear someone explain the wars as an legit response to the 9/11 attack, it sounds as an "excuse" a kid would make after a school massacre. Oh look he say, there was this evil kid who hit and kicked me that other day, so I took my dads machine gun and extracted my revenged. The other children and teachers sheltered th…

Well, the government is constitutionally obliged to defend the citizenry. Any President that went on TV and said 'you know, we sort of deserved that due to our past foreign policy, so we should take it on the chin' would almost certainly have been impeached. Now I do see whare you're coming from, and somewhat agree, but I'm making n argument about what's legal as opposed to what's right. I think, for example, that once we withdraw our troops from Afghanistan Congress should sunset the AUMF and define the scope of Presidential authority to fight future terrorism much more narrowly.

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

#99

Post by [deleted] »

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…

[deleted]

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

#100

Post by anigbrowl »

sixQuarks wrote: post #35
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."

As someone who is not affiliated with either party, I really don't get Obama supporters. He was supposed to bring change to the white house, instead, he has expanded Bush-era secrecy and has eroded our civil liberties even further... and not a peep from his support base. In my view, democrats are the lesser of two evils, but I'm just surprised that nothing has been done about this.

Bringing change is easier said that done. Consider an example from last week's news; US agents captured Osama bin Laden's son-in-law, a former Al Qaeda spokesman, and have brought him to New York to stand trial. Some politicians are incensed, saying that it willmake NY a terrorist target and that he doesn't deserve a criminal trial, and demanded that the fellow instead be sent off to Guantanamo bay and interrogated, with his fate to be decided by a military court (summarized here: http://articles.washingtonpost.com/2013-03-09/opinions/37579... FWIW I agree with the conclusion of this editorial).

You might remember that Obama attempted to close down the detention facilities in Guantanamo soon after taking office, and wanted to try alleged 9-11 mastermind Khalid Sheikh Mohammad in NYC, but the plan was shelved following vociferous objections, public demonstrations etc. Now I don't want to go all partisan, but I can't help observing that the very same Tea Party type Republicans that object to big government were the very same people that rallied in the streets of NY to argue against transparency and the application of the criminal justice system. For the administration, it's kind of a 'heads you win, tails I love' situation.

Part of the problem is that civil libertarians are not very organized. They don't march on TSA headquarters to demand the right to leave their shoes on, or parade through the streets of NY to champion the criminal justice system, or picket the headquarters of the NSA. When the administration does stand up for civil rights (even in a small way like the above), they get virtually no popular support.

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