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Comment by themartorana | Hacker News Reader

"In 2008, the Justice Department’s Office of Legal Counsel concluded that the FBI was only entitled to get the name, address, length of service, and toll billing records from companies without a warrant. Opinions issued by the OLC are generally treated as binding and final within the executive branch."

"The FBI has said it disagrees with that conclusion, and interprets the opinion differently, according to a 2014 inspector general report. It sees the question as more of an “impasse” than an actual legal barrier."

It's madness to me that the FBI can just say "na, we see it differently" and until the Supreme Court tells them to stop (and even then?) they'll do whatever they want.

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It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.

What's the OLC's authority? Is their opinion binding?

From above, "Opinions issued by the OLC are generally treated as binding and final within the executive branch." So they don't have any legal authority or hierarchy per se since they're two parts of one legally defined branch of the government, but apparently the OLC is supposed to be the authority.

But is the president not in charge of the entire executive branch? If he wanted to fix it, could be not issue binding orders?

I'm not an expert on law by any means, but I think Obama can fix this with an executive order.

It's not formally binding. But the executive is a single entity under the President. Constitutionally, the FBI doesn't have any independence. The OLC is like the executive's in-house legal counsel. One part of the executive ignoring its opinions is like having a division in your company ignoring your legal department's opinions and coming to its own conclusions. It represents a failure of leadership at the top.

If by leadership you mean fire the instigator of the asshattery then I agree with you.

Sure. But failure to fire the people being insubordinate is also a failure of the President's leadership.

The people being insubordinate may well not be political appointees that serve at the pleasure of the President and who therefore could be fired by the President (and, procedurally, the President can't directly institute the processes which would lead to firing them, either), and while the President can fire the political appointees above them, the President can't replace those political appointees without the cooperation of the Senate (unless the opportunity for a recess appointment pops up.)

Failure to fire those political appointees for not firing insubordinates is hardly defensible.

Wenn das der Führer wüsste..

> But the executive is a single entity under the President.

Given that Congress constitutionally can, and does, assign functions directly to specific entities within the executive branch, the concept of the unitary executive, while not entirely lacking in validity, is limited even as a description of the Constitutional structure, much less practical and political reality.

> The OLC is like the executive's in-house legal counsel.

No, its not.

Its like outside (advisory but not trial, as the latter function is handled by, well, much of the rest of DoJ) counsel to executive branch entities other than DoJ, which all, in fact, also have their own in-house counsel.

The three co-equal branches of government have the prerogative to independently interpret the Constitution. But Departments within the executive do not stand in the same place as the co-equal branches. They don't get to have their own interpretations of the Constitution--just the executive's interpretation. They do often have their own in-house counsel, but those are generally responsible for Department-specific issues, not generating independent opinions on matters of cross-cutting concern.

To stretch the corporate analogy, it's like a large company that might have regional or divisional legal departments in addition to a general counsel's office. While the divisional departments may have specific roles and expertise, they cannot go their own way on matters of company-wide concern.

Comparing OLC to outside counsel ascribes to departments an autonomy they don't possess. A company is an independent entity with the prerogative to ignore its outside counsel. But agencies like the FBI are not independent. They're mere organizational units of the executive.

> It represents a real failure of leadership on the part of the President if parts of the executive are ignoring OLC opinions.

Whatever it might be executive-branch-wide if non-DOJ agencies were doing that, its a failure of leadership within DOJ if entities within DOJ are ignoring OLC opinions. Which is the issue here; the lowest common level of authority between FBI and OLC isn't the President of the United States.

At what point will the public realize the truth of rogue agencies and corruption of power in the military and FBI/CIA?

The public realizes the truth. But what can we do as individuals? The best we can do is, what, teach our children the value of philosophy and a common humanity and hopefully have them occupy these leadership roles in a capacity that follows the rule of law and the greater goals?

How do individuals change a system that rewards loyalty, secrecy, and praise to higher ups who run with the status quo way of thinking? Shit, I even recognize that if I was put into a middling position at the CIA/FBI/ETC that I would probably forgo several of my personal moral/political positions to keep and progress in my job.

Changes can come externally through art and civil demonstrations of our power, but really, it may be that our best path is the slow one through education, which is slow, and long, and again, very slow. And very painful.

I think you also have to organize and get money out of and honest people into politics. Just consider Stav Shaffir, who near the end of this video makes some very good points about idealists and their aversion to power:

https://www.youtube.com/watch?v=5eqCprXn_UY

If more people were "more like that", and if more of them would manage the "quantum leap" into serious politics, that would still be slow and painful, but at least more than asking for things or offering facts. Don't get me wrong, that is all very necessary and good, but it's not quite enough IMHO.

>organize

If only there were not an agency dedicated to the disruption of organized opposition.

It's incredibly simple to disrupt emerging organizations in to chaos when you have access to everyone's metadata. You don't have to assassinate anyone, you don't even have to discredit all of the important nodes, although that's a useful tool. Many of the critical nodes won't recognize themselves as such. Divert them to other interests, personal, professional, philosophical/moral or legal... And a movement sputters and scatters in to emephera instead of transitioning in to an effective force for change.

Social judo is vastly more effective than jackboots ever dream of being.

They're not rogue agencies. They're doing exactly what they have been empowered to do. All these opinions from other parts of the government do that appear to be in conflict with that make it look like the government wants them to stop, so people think that the government is looking out for their well being.

The various TLA's in the US are operating as intended.

The way modern politics works, it doesn't matter if people realize the truth. Democracy as currently implemented in the USA is broken.

Even if you think the incumbent is doing bad things, we've been conditioned to believe that the "other side" (from whichever tribe you count yourself) is evil and must be stopped at all costs. Thus, you have to vote against that evil challenger. This, of course, gives politicians license to be exactly one iota less evil than the other guy.

Although it's a complex question, I think a lot of the blame can be put on (A) the entrenched two-party system, since there can never a choice other than your team or the evil team; and (B) gerrymandering, so that what choices can be made over candidates happens in the primaries, which means the choice is made primarily by the most hard-core party members.

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