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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

#131

Post by rayiner »

unclebucknasty wrote: post #128
rayiner wrote: post #120

Earlier quoted context omitted.

The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.

Not true. In fact, that's a pretty astounding statement. Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over direct…

This is mostly just "truthy." In reality, federal surveillance was dramatically higher during the Cold War (modulo improved technology), and the idea of the strong unitary executive dates to the founding of the republic. Stuff that you claim is "unprecedented" is anything but. The concept of "preemptive war" has no real distinguishing characteristic in an American history full of military interventions absent direct attack.

There is nothing "remarkable" about the justifications for drone strikes against ostensible American citizens who have taken up arms against the U.S. and are not on U.S. soil. Skirting along a murky and untested line? Sure, but not "remarkable." There is no consensus among legal scholars on the issue, and it is not without precedent (there are records, of various reliability, of Americans who fought for the Nazis and were killed in the war).

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

#132

Post by anigbrowl »

wnight wrote: post #123
anigbrowl wrote: post #108

Earlier quoted context omitted.

You need to distinguish between the different branches of goverment; it's not a monolithic entity, nor is it constituted as one. It's not as clear as you think that the example above isn't constitutional, because in making immigration law Congress is exercising one of its enumerated powers to 'establish an uniform rule of naturalization,' and an argument can be made that the Judicial branch has business poking its no…

I know the government isn't a monolithic entity - we rely on it being many departments in many agencies all full of individual people each bringing their own ethics into play or we'd simply have an automated dictatorship - Chinese-Room style. The problem we're discussing is one governmental body trying to remove peoples' recourse to appeal to the other branches of government, specifically to avoid their work being au…

I have a lot to say about it because I'm very interested in law, as well as theories and philosophy of law. I feel these offer some important context that is otherwise missing from these discussions, and that many people are unaware of. I'm not trying to swamp your point, though.

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

#134

Post by macchina »

jholman wrote: post #121
anigbrowl wrote: post #85

Earlier quoted context omitted.

IANAL or a procedural expert, and more importantly I have not read all the filings so far, but my understanding is that the tension between steps B and C goes like this: B) ISP files suit, argues 'this ain't constitutional, we shouldn't have to comply.' DoJ disagrees. C) FBI counter-files, asserting that even if ISP prevails in step B), it should comply in the meantime rather than temporize pending the outcome. I can…

IANAL either, of course. Thanks for clarifying your claim. Without having read all the stuff, and in fact mostly just having read the first few pages of the judgement that you posted, I think it's clear that a key part of (B) is that the ISP argued that the gag was unconstitutional. I have seen no evidence so far saying that the judgement against the FBI gets the ISP off the hook for turning over the data. I agree th…

I think it actually started with (A) the DOJ filing a action to compel the company to comply with the national security letter. Then (B) the company replied requesting the letter be invalidated on First Amendment (compulsory non-disclosure of the NSL) and statutory grounds. Then (C) the DOJ files another motion showing why they need the information and asking for the court to force the company to comply with the NSL while the case is pending so they can pursue their investigation.

The court ended up ruling that the non-disclosure provision violated the First Amendment and invalidated the NSL law as a whole.

I think the only law the DOJ was accusing Credo of violating was 18 USC § 2709[1] which requires carriers to turn over subscriber information and prohibits certain disclosure.

But you're correct that the Government argued that the court did not have jurisdiction to rule on the constitutionality of the law. This was because Credo brought its action under a statute that gives a court limited authority to modify or revoke the NSL. However, the court found the constitutional challenge was a necessary part of Credo's claim and allowed it.

1. http://www.law.cornell.edu/uscode/text/18/2709

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

#135

Post by D9u »

rayiner wrote: post #120
unclebucknasty wrote: post #102

Earlier quoted context omitted.

Yeah, and of course this is just fundamental separation of powers by design, else the government would be exactly a monolithic entity. But, then this type of victory seems rare these days, as the Executive has grabbed so much power since 9/11. Seems the balance has been upset.

The "power grab" since 9/11 is mostly imagined. There is very little the President can do now that he couldn't in 1970, and as a practical matter he can do a lot less than he could in 1955.

...he can do a lot less than he could in 1955.

Such as summary execution of Americans considered to be "terrorists?"

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

#136

Post by chrisbolt »

defen wrote: post #18
Zimahl wrote: post #11

Earlier quoted context omitted.

Sadly the Supreme Court has been a bit to pro-government to my tastes lately. I'd have to disagree. We've seen GPS tracking thrown out and other curbs on invasions of privacy. This court seems very interested in broadly defining privacy.

IANAL but IIRC the GPS tracking was thrown out on narrow technical grounds - without a warrant the cops can't trespass upon your vehicle to install the tracker. They didn't say there was anything inherently wrong with the tracking itself. In other words, it would be just as illegal for the cops to surreptitiously attach an inert brick to your car without a warrant.

Which brings up the quesion... would it be legal if GPS tracking devices were embedded into government issued license plates?

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

#137

Post by D9u »

rayiner wrote: post #131
unclebucknasty wrote: post #128

Earlier quoted context omitted.

Not true. In fact, that's a pretty astounding statement. Executive power has expanded greatly since 9/11. The PATRIOT Act alone vastly expanded law enforcement capabilities. Law enforcement, of course, being of the Executive and including the DOJ. In fact this thread likely wouldn't need to exist if not for the expansion of NSL under the PATRIOT Act. Many of the rights that we ceded as citizens were given over direct…

This is mostly just "truthy." In reality, federal surveillance was dramatically higher during the Cold War (modulo improved technology), and the idea of the strong unitary executive dates to the founding of the republic. Stuff that you claim is "unprecedented" is anything but. The concept of "preemptive war" has no real distinguishing characteristic in an American history full of military interventions absent direct…

Further, and tangentially, the idea that I have to remove my shoes prior to boarding a commercial airliner, without any (I've never hijacked a plane before) probable cause, in the same airport that I once carried weapons through while in the service of the US Army, is a definite affront to my sensibilities, especially as a loyal American.

Just because a small group of predominantly Saudi Arabian nationals hijacked some planes doesn't mean that I'm going to do so.

There were hijackers back in the 1970's, but no one was subjected to such indignities as we are now. Before anyone mentions "the shoe bomber," how about "the underwear bomber?" Following the shoe removal logic, the next step is strip searches of all passengers prior to boarding, right? Someone might have some explosive underwear! /sarcasm

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

#138

Post by eurleif »

defen wrote: post #33
rayiner wrote: post #31

Earlier quoted context omitted.

That's not a narrow technical ground. Requiring involvement of the judiciary versus not requiring it is a huge distinction.

To clarify - they (in my recollection) didn't say anything about the appropriateness of automated monitoring of people's movements in public places. It's already ok for the cops to tail you without a warrant. But automated vehicle-tracking via drones without a warrant (for example) is still up in the air. No pun intended. It wasn't really a ruling in favor of (or against) privacy.

Seems to me like drones should be treated the same as thermal imaging cameras, which the Supreme Court ruled required a warrant (http://en.wikipedia.org/wiki/Kyllo_v._United_States) because they're not in use by the general public, and thus there's a reasonable expectation of privacy. But it was a 5-4 decision, and I guess drones might come into use by the general public, so who knows.

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

#139

Post by neilk »

rayiner wrote: post #63
sixQuarks wrote: post #35

Earlier quoted context omitted.

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.

Obama has been more or less the right-center President he was as a candidate. People who are surprised by this wishfully read too much into his rhetoric. E.g. Obama has continued interventions in Pakistan, etc, even though some people pinned their hopes on him as an "anti-war" candidate. But he was never "anti-war." He was "anti-Iraq war." He ran on a platform of "Bush took us into Iraq instead of hitting the terrori…

Obama campaigned on closing Guantanamo[1], restoring habeas corpus for "enemy combatants"[2], abolishing military commissions for detainees[3], etc.

Moreover, as an Illinois state Senator, one of Obama's signature accomplishments was a reform in how prisoners were interrogated.[4]

Obama made less specific pledges about reducing the state secrets privileges. You can check out how surprised some judges were when, one month into his presidency, the Obama administration continued the Bush-era position that extraordinary rendition was too sensitive to even discuss in court.[5]

We can argue about how much his promises mattered to his getting elected. And I agree that his rhetoric interpreted wishfully by his supporters. But even with all that, there's no question there's been a real about-face once he took office.

[1] http://www.politifact.com/truth-o-meter/promises/obameter/pr...

[2] http://www.politifact.com/truth-o-meter/promises/obameter/pr...

[3] http://www.politifact.com/truth-o-meter/promises/obameter/pr...

[4] http://www.washingtonpost.com/wp-dyn/content/article/2008/01...

[5] http://www.nytimes.com/2009/02/10/us/10torture.html?_r=2&#38...;

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

#140

Post by D9u »

rayiner wrote: post #63
sixQuarks wrote: post #35

Earlier quoted context omitted.

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.

Obama has been more or less the right-center President he was as a candidate. People who are surprised by this wishfully read too much into his rhetoric. E.g. Obama has continued interventions in Pakistan, etc, even though some people pinned their hopes on him as an "anti-war" candidate. But he was never "anti-war." He was "anti-Iraq war." He ran on a platform of "Bush took us into Iraq instead of hitting the terrori…

re: drone strikes, is it really any worse than the cruise missiles Clinton was fond of using?

Clinton wasn't targeting Americans.

If due process can be denied to any American, then our "Moral High Ground" has been forfeit. Even child molesters, and foreign spies, are afforded a trial. Terrorists should also face a trial, as well as punishment when convicted.

As for the right-center President, there is very little difference between the actions of Democrat and Republican presidents. It's like the difference between CocaCola and Pepsi when all we want is water.

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