Hacker News Board Hacker News, browsed like a classic message board
Live data from Hacker News

Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

eff.org

Post reply on HN
Print view View original

101–110 of 143 posts

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#101

Post by throwaway987654 »

inopinatus wrote: post #41
ihsw wrote: post #10

Earlier quoted context omitted.

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

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#102

Post by dylangs1030 »

chinpokomon wrote: post #95
dylangs1030 wrote: post #76

Earlier quoted context omitted.

"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.

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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#103

Post by NhanH »

dylangs1030 wrote: post #76
windexh8er wrote: post #70

Earlier quoted context omitted.

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 the…

"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.

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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#104

Post by dylangs1030 »

anigbrowl wrote: post #79
dylangs1030 wrote: post #76

Earlier quoted context omitted.

"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.

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).

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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#105

Post by dragonwriter »

mullingitover wrote: post #8

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?

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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#106

Post by dylangs1030 »

glesica wrote: post #85
dylangs1030 wrote: post #76

Earlier quoted context omitted.

"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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#107

Post by dragonwriter »

betterunix wrote: post #96
anigbrowl wrote: post #54

Earlier quoted context omitted.

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…

"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 conclus…

> 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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#108

Post by dylangs1030 »

NhanH wrote: post #103
dylangs1030 wrote: post #76

Earlier quoted context omitted.

"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.

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.

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#109

Post by haliax »

dylangs1030 wrote: post #102
chinpokomon wrote: post #95

Earlier quoted context omitted.

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.

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?

Re: Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

#110

Post by dragonwriter »

CamperBob2 wrote: post #74
FedRegister wrote: post #33

Earlier quoted context omitted.

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.

Post reply on HN