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NSA surveillance may be legal – but it’s unconstitutional

washingtonpost.com

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Re: NSA surveillance may be legal – but it’s unconstitutional

#21

Post by NegativeK »

monochromatic wrote: post #10
throwaway10001 wrote: post #5

Earlier quoted context omitted.

You have it wrong. Congress passes law to say, intercept all phone calls and store them. Until a court strikes it down is assumed constitutional and legal. You challenge it and then it becomes illegal and unconstitutional. (The court also changes its mind from time to time so it's not an exact science.)

It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so.

Applying binary, a priori rigor to things that are written and interpreted by humans feels like the wrong path to go down.

Re: NSA surveillance may be legal – but it’s unconstitutional

#22

Post by rayiner »

dsr_ wrote: post #3
argumentum wrote: post #2

As the Constitution is the "supreme law of the land", nothing "unconstitutional" can simultaneously be "legal."

Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.

> I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.

I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloomberg. He said something along the lines of: we should make sure protections are in place, but you can't expect the government to ignore e-mail, etc, when everyone uses it to communicate these days.

The reporter seemed entirely happy with the answer. So: whose ideas of "right" and "wrong" are we using?

Re: NSA surveillance may be legal – but it’s unconstitutional

#23

Post by rayiner »

monochromatic wrote: post #10
throwaway10001 wrote: post #5

Earlier quoted context omitted.

You have it wrong. Congress passes law to say, intercept all phone calls and store them. Until a court strikes it down is assumed constitutional and legal. You challenge it and then it becomes illegal and unconstitutional. (The court also changes its mind from time to time so it's not an exact science.)

It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so.

> The issue simply isn't decided until the court says so.

Right. The NSA can make a good faith argument that they designed the program to stay within the bounds of Constitutionality. Their opinion can't override that of the Supreme Court, but until the Supreme Court rules they are entitled to try and interpret the law and act accordingly.

Re: NSA surveillance may be legal – but it’s unconstitutional

#24

Post by alexqgb »

austenallred wrote: post #19
confluence wrote: post #9

I do find arguments based on strict legality to be just a tad strange. Just because something is strictly legal doesn't mean that it's right, nor that it's in the spirit that the law originally intended. I mean, it was legal to exterminate Jews in Nazi Germany, send millions to death camps in Soviet Russia and starve 10s of millions to death in Communist China. Strict legality is particularly low bar to pass. What ha…

Bingo. The entire NSA hearing a few days ago was NSA directors pointing out under which law they perform each action. They could do it, because according to US law it is legal. The much more deep rooted question is "is this good?" Every aspect of law in the United States can be changed and rewritten according to the conscious of the people, though this takes a long time to do. Legality is temporary. Under ideal circu…

There's also a big difference between new law - which can be batshit insane - and settled law, which has both passed constitutional muster and become widely accepted. Trying to reconcile "consent of the governed" with "secret law" goes in the opposite direction.

Re: NSA surveillance may be legal – but it’s unconstitutional

#25

Post by bobwaycott »

rayiner wrote: post #22
dsr_ wrote: post #3

Earlier quoted context omitted.

Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.

> I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloo…

I'm doubtful that there's actually a conversation happening about right and wrong. The media attention surrounding these issues, and the treatment of the official actors, is centering entirely on the question of "is it legal?". They should, instead, be focusing on the question of "is it constitutional?". It's a very different kind of question. When all that can be said is that laws X, Y, and Z form the basis for action C, we have a fundamental failure at interrogating lawmakers and enforcement officials to ensure they are not complicit in violating the Constitution.

Re: NSA surveillance may be legal – but it’s unconstitutional

#26

Post by AnthonyMouse »

rayiner wrote: post #22
dsr_ wrote: post #3

Earlier quoted context omitted.

Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.

> I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloo…

>So: whose ideas of "right" and "wrong" are we using?

That's the whole problem, isn't it? What the law is now can't be the standard for what the law should be or it can never change. But if we can't use legality to determine morality and morality in general is considered subjective then what are we supposed to do, flip a coin?

Obviously the answer is that we collectively have to define "wrong" based on logic, evidence and history. (The alternatives of basing it on "might makes right" or "loudest voice wins" may be popular but, at the risk of creating a cycle, that isn't right.)

So we need to have a debate. We need to see the evidence. How many terrorists have been foiled with this surveillance? How many could have been caught some other way and what would that have required? What are the risks to the public of allowing the government to accumulate this information? How does the one weigh against the other?

The problem is that we can't have the debate so long as they insist on keeping the evidence a secret. Which is why the secrecy itself is wrong -- it allows for unaccountable government power, which based on logic, evidence and history can lead to Very Bad Things That Must Never Happen Again.

Re: NSA surveillance may be legal – but it’s unconstitutional

#27

Post by lawnchair_larry »

rayiner wrote: post #22
dsr_ wrote: post #3

Earlier quoted context omitted.

Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.

> I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloo…

How could this be disappointing? Nobody cares about what's legal, that is the point. We care about what is just.

Re: NSA surveillance may be legal – but it’s unconstitutional

#28

Post by aclevernickname »

alexqgb wrote: post #24
austenallred wrote: post #19

Earlier quoted context omitted.

Bingo. The entire NSA hearing a few days ago was NSA directors pointing out under which law they perform each action. They could do it, because according to US law it is legal. The much more deep rooted question is "is this good?" Every aspect of law in the United States can be changed and rewritten according to the conscious of the people, though this takes a long time to do. Legality is temporary. Under ideal circu…

There's also a big difference between new law - which can be batshit insane - and settled law, which has both passed constitutional muster and become widely accepted. Trying to reconcile "consent of the governed" with "secret law" goes in the opposite direction.

I thought NSPD-51 solved all of that, putting the Executive Branch above the constitution, so it's actions didn't have to pass muster.

I wish I was kidding:

http://en.wikipedia.org/wiki/National_Security_Presidential_...

http://www.marjoriecohn.com/2007/05/unitary-king-george.html

Re: NSA surveillance may be legal – but it’s unconstitutional

#29

Post by tptacek »

lawnchair_larry wrote: post #27
rayiner wrote: post #22

Earlier quoted context omitted.

> I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloo…

How could this be disappointing? Nobody cares about what's legal, that is the point. We care about what is just.

You know that semantic distinction wasn't the point of his comment.

Re: NSA surveillance may be legal – but it’s unconstitutional

#30

Post by jessriedel »

pyre wrote: post #13
leoc wrote: post #8

> As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But PRISM, as opposed to "upstream collection", isn't (necessarily) about searching foreigners abroad, or even at the border. It's about searching their stuff held on servers (sometimes) located inside the US and run by US companies as part of a business agreement with those f…

| However I have heard it suggested (IANAL) that | sufficient legal cleverness can allow this to be | characterised as a border search. Every airport is considered a 'border.' So even cities that are greater than 100 miles from a land border, or the ocean have a 100 mile circle around their airport where 'border searches' can happen. It doesn't take much legal cleverness to apply this to foreigners accessing US-based…

The 100-mile number is taken from a federal law that was found to have no importance with respect to constitutionality. The Supreme Court made is clear that border searches must actually involve border crossing.

http://scholar.google.com/scholar_case?case=6933260753627774...

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