Federal Judge Finds National Security Letters Unconstitutional, Bans Them | Hacker News Reader

Federal Judge Finds National Security Letters Unconstitutional, Bans Them

wired.com

646 pointsTDL172 comments

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.

Credo mobile, it's in the article.

Yeah, Credo is sort of a bizarre little company. They created a Super PAC to oppose tea party candidates and to support public financing of campaigns, i.e., outlawing Super PACs (they were a total anomaly in this regard). In 2011, they received one of those so called "national security letters" and just completely stonewalled the FBI. Thank god for this one activist mobile carrier or this case would've probably never happened.

Credo is the latest incarnation of the old Working Assets long-distance firm, if you're old enough to remember them and that helps explain their politics.

Wow,nice!

Just saw their website. Impressed by the progressive values, saddened by the partisan politicking ('fight the right', WTF?

Kudos to the EFF. And here is a link to vote with your money: https://supporters.eff.org/donate/nsl

(And yes, I'm a member)

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."

That's incredibly alarming. This is Obama's justice department too, headed by people he personally appointed.

Obama's justice department has been just as horrible, if not more-so than Bush's justice department.

The real tragedy is the free pass the press gives him, if Bush had pulled this, the drone hits, fast and furious, and more, we would have at least had the press on our side.

I can, but don't have to accept, members of his own party turning a blind eye, I will never accept a press which has.

I don't see it. Bush started a literal war of aggression with press support; we're supposed to expect them to get up in arms over a few assassinations?

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 the highest estimate, which sounds bad until you consider lowest estimate for the Iraq war is 110,000 deaths, of which over half are civilians. The median estimate is about double that.

Drones are sort of scary for a variety of reasons, but there is at least some basis for fighting that conflict (directly responsive to 9-1--2001 attacks) and the casualties from done warfare are a fraction of those from conventional warfare, by about 2 orders of magnitude.

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 that bully, so they deserved what they got. It was justice, he said.

There are no sane reasoning behind such claim. There are also no sane reasoning behind any claimed connection between 9/11 and the current wars or drone usage. I understand that the kid received a great injustice from the bully. I can understand the need for revenge. 9/11 was also a great injustice where people craved for revenge. But sanity left quick after, and we got schools with dead bodies and two wars. That, and drones.

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.

Are we talking about the same press that cheer-led us into the Iraq war? And on a macro scale--the same press that has basically deified Ronald Reagan?

The American press has never been opposed to blowing up foreigners, because Americans believe it is our god-given right to blow up foreigners. This is true regardless of what party is in power. To the extent that there is opposition, it is rooted solely on the impact of military action on Americans--servicemen killed in action, money spent out of the Treasury, etc. That's why the press finally turned against Bush when Iraq continued to drag on. And that's also why the press doesn't care about drone strikes--the American drone operators aren't getting shot at nor do they cost us a lot of money. That's why they didn't care about cruise missiles under Clinton, either.

The press don't care because of structural reasons not because of a belief system common to Americans. Press reporting is systemically biased in favor of powerful interests that influence them by carrot and by stick.

Have you spoken to many Americans?

I went to college in Atlanta, Georgia (a pretty liberal place as far as the South goes). A year or so after the 9/11 bombing, I remember my classmates talking about how we should turn the Middle East into a glass parking lot. Quite seriously, with zero disagreement from anyone else. This was at a well-regarded engineering school, so these weren't stupid people, and indeed they were all very nice guys. We're just a tribal people--it's "our tribe" versus "their tribe" and the use of force on people outside the tribe is seen dramatically differently than the use of force on people within the tribe.

You don't need to reach to "bias" and "powerful interests" to see why the media reports the way it does. The media is a reflection of the beliefs of the American people.

I think that different Americans believe different things. Believe it or not, your paragraph of an anecdote from 11 years ago doesn't do much to convince me otherwise.

What's your point? Yes, there is a minority of Americans that cares about drones blowing up people in Yemen. The media does not cater to those people. None of this refutes my point.

> a minority of Americans that cares about drones

Does "minority" here mean 49%? 1%? You don't know, you don't care. You're pretending to argue using data but really just going from your gut beliefs about media, not from any basis in fact other those precious few you've selectively picked to form your opinion over the years.

That's my point.

http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/06/th...

I was in school next door at Georgia State about a year after that. The way I remember it was that the entire campus was basically wailing and gnashing their teeth at the prospect of war with Iraq.

I don't remember anyone, except me, who was pro war (btw I'm ashamed that I supported the war back then--before I shifted to more libertarian views).

There was lots of protest to the Iraq war. Not as much as people pretend now, but still a lot.

Protest to the Afghanistan war, on the other hand, was extremely rare.

I was actually quite opposed to the Iraq war (on time/money grounds, not pacifism) but I was quite definitely in the minority. Then again, Georgia Tech is a pretty conservative place as far as universities go, especially within the engineering departments. I think the political tone was closer to the mainstream, though, than what is the case at other universities.

> The media is a reflection of the beliefs of the American people.

That's backwards. For issues of political significance the beliefs of the American (or other) people are a reflection of messages produced by the media. Iraq war mongering was proliferated by the media, as desired by the state.

Nerds on message boards also think that the country is outraged alongside them about TSA scans. But I listened to Talk of the Nation this week on the new TSA pocketknife policy, and the sentiment was overwhelmingly in the other direction --- "I fly with my children, so I think anything we can do to make ourself more safe...". People are angry at TSA... for relaxing restrictions on carry-on items!

I opt out of the electronic strip search at every airport. How many times do you guess I've seen someone else opting out at the same time? Zero.

The only reactions I've gotten re: the TSA have been:

1) General annoyance at how much time it adds to the process;

2) People who don't like taking orders from TSA workers (on class/race grounds);

3) Slightly exhibitionist reactions from female friends who don't mind the naked scanners.

At least (1) is by far the most common reaction, but I'm not even kidding about (2) and (3).

I don't think that the press is giving him a pass, so much as what he is doing has the approval of BOTH parties.

The press (I'm talking about the one that drives the political discourse, in this case, the major news networks) is divided into three teams:

1) MSNBC aka Team Democrat

2) Fox News aka Team Republican

3) CNN aka Team WE'RE NEUTRAL WE'RE NEUTRAL, PLEASE DON'T CALL US BIASED

Team Democrat will almost never say a bad word about Obama because he is a Democrat (and this would anger his base, aka their viewers).

Team Republican actually APPROVES of what he is doing so don't attack him on it (instead choosing to focus on attacking a fictional Obama character who is a "Socialist Atheist Muslim Commie Infiltrator born in Kenya").

This leaves CNN, who out of fear of ever being called biased, attempt to be neutral (as opposed to objective) and so take part in "he said, she said" journalism, and right now, both he and she are saying the same thing: "OBAMA NATIONAL SECURITY POLICY GOOD".

examples:

1) Democrats say Obama's new healthcare bill will help decrease the deficit, Republicans say it will add to the deficit. What's the reality? The f*ck should I know? It's not like we do any investigative journalism here, let me instead have a split screen of two a$$holes engaged in a shouting match. One representing team Democrat and the other, team Republican.

2) Democrats say that Paul Ryan's budget proposal does not offer any specifics as to how exactly he would lower the deficit and thus is not a serious proposal. Paul Ryan disagrees. Who's telling the truth? I don't know, it's not like I know how to read or anything.

I also specifically picked these examples to mention another trend, that of CNN (and other news networks/outlets hoping to earn the moniker of neutral/bi-partisan), fearful of charges of being part of the "liberal media" will over-correct, and usually be harsher on Democrats than Republicans.

The irony is that their argumentation in court is identical to that of the Bush DOJ.

It's almost as if most of the people involved are career bureaucrats and don't change with the party in power.

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.

The depressing part is realizing that Obama is actually the lesser of two evils (two elections running), and that worse could be happening right now in terms of rights erosion and increase in security-state.

There is no left-wing remaining in power in this country. You only have corporatists and reactionary extremists corporatists.

It seems as though you may need to be a corporatist to raise a war chest comparable to the corporatists. It seems like the logical/natural steady state of elections with deregulated campaign finance...

Just something to chew on: I think you've set up a false dichotomy. It is also possible that the problem is not deregulated campaign finance but rather the increasing shift away from a constitutional republic form of government to a democracy.

One of the big benefits of a republican (small "R", not the party) form of government is that it's far more difficult to buy off because at conventions each delegate (which are generally grass-roots involved people who have no financial incentive) has the same influence regardless of which candidate has the most money.

Regulated campaign finance...who writes the rules?

The problem is fundamental to the structure and it is inevitable that, over time, every government becomes tyrannical.

Thomas Jefferson made it clear for the ages, "the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."

Governments are of man and man is prone to taking advantage of and abusing his or her peers.

"When the people fear their government, there is tyranny; when the government fears the people, there is liberty. I am not a friend to a very energetic government."

- Thomas Jefferson

"What has been will be again, what has been done will be done again; there is nothing new under the sun."

> 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 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.

Ah ok, I had the slight impression that you didn't want to discuss this and instead just voice your opinion. Confirmed and noted.

I republic is a form of democracy. There is no such thing as a pure democracy, so making that distinction is a little meaningless.

I upvoted you, but while we are nitpicking: "a little meaningless" is quite like saying "a little pregnant" ;-)

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.

When was that ever not the case? Even FDR, the most socialist president we ever had, implemented the extremely regressive Social Security taxes.

What civil liberties have been eroded?

He extended the PATRIOT act, is potentially skirting the fifth amendment, and is trying to seriously infringe the second amendment.

Edit: If you disagree with my assertions, you can make your own informed opinion based on this data: http://www.politifact.com/truth-o-meter/promises/obameter/su...

He also signed into law a further restriction of the 1st amendment; it's now legal for the secret service to a.) be sent to guard any arbitrary person and b.) to arrest anyone demonstrating (like just holding a sign) within a specific distance from said protected person.

> and is trying to seriously infringe the second amendment.

Oh, come on. Free speech is way more infringed than the second amendment and all anyone cares about is firearms which are more dangerous than useful against tyranny.

Just because chose to excerpt my statement down to the second amendment doesn't mean that it's the only one I care about. It's also not all that "anyone" cares about.

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?

Also, it was Gerald Ford that pardoned Nixon.

LBJ was the successor to Kennedy.

I'm in the business of building things that have never been done before, so I value economic freedom and good governance and my estimate of the lesser of two evils goes the other way.

But it's sad that we get no civil liberties either way (unless people like Rand Paul get their way).

"I'm in the business of building things that have never been done before,"

If only the government would get out of the hero entrepreneur's way so he and his fellow Bay Area/Boston/Chinese/Indian/Nordic/Eastern European/<insert leftist area> engineers could bring their unique vision to life.

"I value economic freedom"

For today's GOP "economic freedom" translates to lower taxes for rich people, carte blanche to piss in the pool, and closing economic doors for the less fortunate.

"good governance "

Turning the government over to lobbyists, destroying public education, weakening clean air and water standards, ignoring global warming, starting pointless wars, neo-creationism, disenfranchising hard fought voting rights, monetary crankism, opposing any and all reasonable regulation of firearms, etc. None of these sound remotely like "good governance". The Democrats are no saints but the modern GOP is repugnant on many fronts.

"But it's sad that we get no civil liberties either way (unless people like Rand Paul get their way)."

As bad as Obama is on civil liberties he stopped torture that went on under GOP and he tried to close Guantanamo but was prevented by the GOP. At the end of the day, presidents of all parties tend to vote for more executive power. For the parties themselves, it's progressives that have been the best defenders of civil liberties and that can be seen clearly in something like the Patriot Act votes.

Blue areas are in a perpetual state of what I call "bad governance". California is an example - a high tax burden, poor public services, and a chronic budget deficit. If you investigate a bit further into how they could suck in so many ways you find out that Democrats held both houses of the legislature for three or four decades straight and that the public unions are their biggest financial supporters. And of course the unions get rich benefits while the rest of us get screwed. So we get high taxes but not even good services to show for it.

The California government is propped up by Hollywood and Silicon Valley, otherwise it would collapse under its illogic. Other blue state governments don't have that luxury and they are in far more dire straights. They have promised their unions more than they can pay and the unions have the power to hold on to it.

I know everybody has different ordering on the importance of issues so reasonable people disagree on politics. I want governments with balanced budgets, long-term planning horizons, decent public services, and a light burden on the private economy and I think the GOP is best suited to provide those things in most areas. It's certainly true in California.

Translation: I'm rich and I don't want to pay taxes. Go suck an egg.

Ha! I'm poor, but optimistic. In my experience it's the people who are born privileged that believe in the leftist narrative that all your success is due to luck/privilege, and people born in poor families in poor red states just want the government to leave them alone.

But regardless, I don't mind paying taxes if it goes towards quality public goods. I do mind paying taxes that go straight into union members' pockets. It's shameful how much the Dems have sold out taxpayer interests in blue states to feather the beds of their union masters. Blue states budgets are sinking under union pension obligations. Shameful.

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 terrorists harder in Afghanistan." So why should anyone be surprised he took troops out of Iraq and put more in Afghanistan?

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

"Civil liberties" in the abstract sense, are not a core issue to Obama's base in the same way that say abortion rights are. During Bush, Democrats opposed expansions such as military tribunals in Guantanamo, etc, but things like NSL's have been around since the 1970's. I don't think the bulk of Obama's base have a problem with the status quo circa 1995, or ever did, regardless of what adherent civil libertarians might have hoped.

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&...;

He tried to close guantanamo and try detainees in EDVa. People in Virginia freaked. Gitmo detainees are getting habeas hearings.

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.

> If due process can be denied to any American, then our "Moral High Ground" has been forfeit.

If due process can be denied to anybody, then our "Moral High Ground" has been forfeit.

Exactly right. A moral high ground built on an axiom of 'our citizens are now deserving of human rights than anyone else's' is more of a moral tar pit than a high ground.

If foreigners can't submit to our responsibilities, then they can't have our rights. The US doesn't rule the whole world, and the world doesn't want US to. Therefore, conflicts will arise, and there is no fair play among warring nations.

> there is no fair play among warring nations.

This might be a fair point if the US government was only claiming that the (supposedly inalienable) human rights which it respects in its own citizens are only suspended as against citizens of countries the US is in a state of war with.

But it doesn't. It claims that they don't apply to any non-Americans (outside US borders, at least - non-US citizens inside US borders do have some protections, IIRC). And the US courts seem to agree (e.g. US v. Verdugo-Urquidez)

The US is not at war with the entire rest of the world.

> If foreigners can't submit to our responsibilities, then they can't have our rights.

The original assertion was about what is moral. To make sure I understand you correctly - you're claiming that because I don't have responsibilities to the US government (I don't pay US taxes etc. being not a US citizen), it's not immoral for the US government to act in a way that, if I was a US citizen, would be an actionable breach of my fundamental rights?

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.

...They don't march on TSA headquarters to demand the right to leave their shoes on...

I don't know about you, but I'm too busy trying to keep a roof over my head to go traipsing off to New York, or to join a march in demonstration of the TSA.

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 defendant, and the DoJ is going to have to abide by that unless they win at appeal.

This is exactly why we have a judicial branch to begin with. You should be celebrating.

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.

I am not wrong, and you have misunderstood my claim. See the judgment at https://www.eff.org/document/nsl-ruling-march-14-2013 Page 2, lines 11-13.

I'm trying to understand your claim here.

If I understand correctly, the sequences of events is like this:

A) FBI issues NSL to ISP, demanding information, and prohibiting disclosure. B) ISP starts a proceeding challenging constitutionality of gag C) FBI starts a separate proceeding reasserting validing of gag

D?) Wired also claims that the FBI claimed that step B violated the law, but I don't see that in the ruling link you posted.

Why is step C needed? Not that it seems that bad....

But if D happened, that seems really alarming.

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 understand why they would, since they may in good faith consider time to be of the essence in obtaining the information they seek - which is part of their job, after all.

I'm not that troubled by D, insofar as undercover operations realistically require a degree of secrecy. What was troubling about the NSL regime was that it asserted this secrecy by default; I expect that in the future the government will still get NSLs but will first go through something like the FISA court and essentially ask a court for a gag order, presenting evidence under seal. This is IMHO how it ought to have been from the start.

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 that, insofar as (B) was about not turning over information, (C) seems reasonable.

I also agree that, as these things go, every time the "bad news" involves "was taken to court", we should remember that the news could be worse, involving arrest or ruin. So yay there. Then again, taking people to court often results in arrest and ruin, so it's kinda a partial victory. But still, yay for rule of law.

There's a place I disagree with you, though:

D, if true, horrifies me. "You're not only allowed to disobey, you're not allowed to ask the court for permission to disobey. Making use of the judiciary is a crime." That's a horrifying assertion to make.

D also, based on the account given, seems insane. The courts had already actively stated, in 2005, that both your version of (B) and my version of (B) are legal. As I write these sentences, I remind myself that any time someone else seems insane, odds are good that I don't have the whole picture.

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

> 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?

You can generally only sue the government to the degree it lets you. In the US, there are various torts acts, etc. There are exceptions to sovereign immunity, but it's not worth getting into.

In practice, when it comes to constitutional rights, this doesn't matter as much as you think, because the government will sue you if they really care.

IE they file criminal or civil charges against you for something you are not doing because you believe it to be unconstitutional.

> 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!)

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.

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 directly to the Executive.

Remember, the Executive branch is more than just the President, but includes all departments under his purview.

I think if there is a myth it is among those who believe that nothing has changed simply because some of these mechanisms (such as NSL and FISA) did exist prior to 9/11. But, in addition to new powers, it is the expansion, interpretation, and application of existing powers that have also represented a large share of the power grab. This started with Bush after 9/11 with his adherence to the theory of the strong unitary executive. This is when we began to see the letters of his attorneys, which re-interpreted existing powers much more broadly and sought to justify unprecedented Executive actions retroactively. That there was never a trial indicates that they were, in fact, successful in their claims to additional power.

Of course one can also point to launching pre-emptive wars as an unprecedented power grab--perhaps of the highest order.

And, essentially, these powers continue to expand under Obama, up to and including the remarkable justification of drone strikes on American citizens.

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).

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

By this logic you've just eliminated the point of all security screenings of anyone, anywhere, ever.

Yet most people would agree that it would be foolish not to take some precautions when loading 300 people on a cigar-tube cylinder in the sky.

It's worth noting that in the 1970s people weren't trying to commit mass casualty attacks with planes via the passengers nearly as often. Today, no one expects a conventional hijacking either.

By your logic, the extent to which we protect American ideals and freedoms is a function of what other actors do. Worse, it is the most egregiously abhorrent actors who would drive our direction most.

The problem with this thinking is that it has brought us exactly to where we are today. It is a very slippery slope that can literally destroy the fabric of this country. There is no end to what can be justified under the pretext of security and we have already given up too many freedoms in the name of "security". I will omit the famous Ben Franklin quote regarding freedom and security, but it certainly comes to mind.

Those who would argue that it is necessary to curtail freedoms and rights in exchange for protection, must acknowledge that what they presume to protect would be a wholly different America, and they must be well with this new America. To make that argument would be honest and a simple matter of opinion, but to suggest that we can continue on this course without fundamentally altering this nation is nothing more than illusion.

Your freedoms are hardly being overtly invaded by being security screened when you fly. Whether the security screening is effective or a distraction is a different question (or dangerous, in the case of the X-Ray backscatter).

I'm curious what freedoms you think you've given up in the name of security, that aren't simply complaints about being inconvenienced. Because there's plenty of real problems, but, in the context of this little comment-chain, the issue was airport security.

You mean what's more invasive than being groped and having an image of my genitals taken when I fly? I think that's overt enough and more than mere inconvenience.

Also not sure how you discount being exposed to dangerous radiation as not "overtly invasive". I certainly don't see that as a different question.

But, I actually wasn't focused on airport security as much as the spirit of your response. This idea that we have to meet everything the bad guys do with "more security", which does equal less freedom, rights, and privacy. The PATRIOT Act, of course comes to mind.

Though, it certainly applies to the airport scenario too. Bad guys put a bomb in a shoe? We all take off our shoes now. Bomb in the underwear? We move to backscatter machines that image what's underneath. Where does it stop? It's crazy, and it's a product of the same general reactionary thinking that brought us the "plenty of real problems" you referenced.

You're conflating drone strikes with uniformed soldiers killed on the battlefields of WWII, and I'm being truthy? Well. OK.

Likewise your other thin comparisons. They lack a certain depth that cause them to ring of disingenuousness. For instance, our actions in the past at least attempted to provide some pretext of military aggression against the U.S. or its allies. You yourself called them "interventions". But, you could not call Iraq an intervention, as there was no military pretext. It was unprecedented because we didn't even attempt to trump up the military pretext. We simply went to war based on what they "might do". Your attempt to dismiss such an obvious departure from American doctrine speaks for itself. In fact, it's so obvious that I actually feel silly responding.

I also wrote Bush's adherence to the strong unitary executive principle, which acknowledges its pre-existence. It was his extensive application of the principle that represented the power grab, per the examples I gave. Much of my comment was about the expansion of existing power vs. the "raw creation" of it.

In general, your citing examples of past abuses are just straw men. I never said that the U.S. has a perfect record or that there has never been abuse of power. But, we are living in a time wherein the Executive has more accepted power than in the history of our nation, and much of it has been enshrined into law. Again, the PATRIOT Act alone is unprecedented in the degree and scope of rights and protections that are given over to the Executive.

To ignore these realities and attempt to rationalize this power grab by spurious comparisons to the past is, at best, non-serious.

I am bringing up historical context because you keep using the word "unprecedented."

We did attempt to justify the Iraq war: WMD's. No less justifiable than many of our other interventions in Latin America, Asia, etc. Spanish American war anyone? Also: since when is justification required to go to war? The test has never been more or less than "protecting our interests."

I don't think its a stretch to compare an American citizen going to Yemen to fight against America with Arab terrorists with Americans going to fight with Nazis. Indeed, the former is worse. American nazis weren't fighting against the US necessarily. They were fighting for Germany (Germany had no beef with us). People like Al Awalki are actively fighting against us and refuse to submit themselves to the criminal justice system. What due process rights should they have? "due process" has always been very flexible, not hard and fast.

It's not that you're bringing up historical context. It's that your analogies overreach and don't make your points.

Of course we go to war for our interests. However, prior to Iraq, there was typically an existing conflict. Further, especially in more recent history, we at least attempted to manufacture some military pretext (Gulf of Tonkin, etc.) The difference with Iraq--and it's hard to believe that you really don't see this--is that there was no conflict and Iraq was not engaged in any hostile military action. We simply attacked them because of what the Executive declared they might do (WMDs or no).

The point is that it represents a new thinking and acceptance of the degree of power vested in the Executive. Even the architects of this power grab acknowledge this fundamental difference. See "Pax Americana" from the Project For The New American Century.

Edit: More specifically, see the report: "Rebuilding America's Defenses: Strategy, Forces and Resources For a New Century"

Your rebuttal regarding drones and Nazis falls down even more. Of course if a U.S. citizen is taking up arms with a nation that is openly at war with the U.S. (as eventually was the case), and is actively engaged on the battlefield, then the U.S. is justified in making no distinction between him and the enemy.

But, that the Executive has the right to declare that a U.S. citizen is an enemy combatant and may be killed with impunity is vastly different. You may take comfort in your degree of confidence that Al Awalki was a bad guy. However, the policy does not limit the Executive to targeting only those whom you believe to be deserving.

And, that is the very problem with your brand of thinking. Nearly everyone who ascribes to it does so under the belief that these policies and laws are necessary for "security" and will apply to only the bad guys.

But, that is the very point of our form of government and the Constitutional rights that we once held dear. The government (and worse, the Executive alone) doesn't get to decide unilaterally who is guilty or not. We are all entitled to due process, as "flexible" and inconvenient as that may be at times. It is our protection against the inevitable abuse that will arise in its absence, and it is one of our most powerful protections against tyranny.

None of this makes your case in any event. Your initial argument was that the Executive has no more power than they've had in the past. The minutiae of drones vs. Nazis into which you've waded just speaks to whether you think the Executive should have such increased power. In doing so, you are actually acknowledging that they do, in fact, have it, thereby making my point.

Something else that you may not have noticed is that your historical comparisons--invalid as they are--point to various incidents across centuries in your search for precedent. But, notice that these did not all take place at one time. It is, in part, the sum total of all of these powers and abuses invested in our Executive at once that represents such a vast increase in power.

The problem of habeas corpus isn't to protect Al Awalki, it is to prevent the government from torturing Al Avalki for ten years and then saying, oops, we got the wrong guy.

Yes. This.

These guys always assume the government only takes freedoms from the bad actors, but, that logic is completely circular. The entire point of our system is that the government doesn't get to make that determination unilaterally. When they do, and in particular when the Executive alone does so, it's called a dictatorship.

I absolutely agree that if Al Awalki was being detained by the government on American soil, he would have been entitled to file a habeas petition to contest his detention. Absolutely no doubt, and there was an 8-1 Supreme Court decision just this decade, post-9/11, that reaffirmed this principle. Habeas is the bedrock of our civil liberties and we should guard it jealously.

But habeas is a procedure for challenging illegal detention, meanwhile Al Awalki was a fugitive. He was not in the hands of U.S. authorities, on U.S. soil. He took up arms against America in Yemen, and was hiding, evading capture. Habeas is inapplicable to a person who is evading the government's attempts to bring him to justice, in effect evading the government's attempts to give him due process. It is inapplicable by the very nature of the device--a writ from a court to order the release of a prisoner being held by an executive authority within the court's jurisdiction. No U.S. court had jurisdiction over Al Awalki.

Yes, and the Supreme Court has already, in practice, retreated from a similar ruling it made regarding foreign detainees:

http://www.nytimes.com/2012/06/14/opinion/the-supreme-court-...

The ruling was all talk and no action. It is only a matter of time before it is tested on U.S. citizens.

Then, there's this:

http://www.huffingtonpost.com/2013/01/03/ndaa-obama-indefini...

This is the slow drip of freedom and liberty on the decline. By the time America realizes what happened, it will be too late.

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

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

Last I checked, American citizens in America aren't being dragged in front of loalty hearings.

Killing an Arab terroris hiding in Yemen actively fighting against the US is not a summary exection. Al Awalki had plenty of chances over years to turn himself in and take advantage of due process.

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.

Clearly you didn't read the article. Asking the court to require compliance would have meant that they would have filed a response to the telecom's suit and made the claim that the NSL was warranted and that the suit should be thrown out.

Instead they're claiming that the mere act of filing suit is in itself illegal.

And they went to court to make that claim. As I've explained wlesewhere in the thread [1], exemption from judicial review is something that is often written into legislation by Congress. It's not the case that people in the DoJ or the WH wake up one morning and decide they can't be bothered with the courts any more. The law is designed to cut the Judicial branch out of the loop.

1. https://news.ycombinator.com/item?id=5383670

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.

Even soldiers (with guns, while under fire) are expected to act legally, and ethically where those standards differ, and we need to hold everyone - public servant or not, to the same standard.

Not only does such a law (making challenging a gag a crime) clearly require authority the people would not and did not grant to the government, but applying such a law to stifle oversight of your actions is criminal - especially when in a sensitive position over so many.

The thing is it takes time to establish exactly what the right standards are, and it's not necessarily settled after today; there might be a circuit split or appeals to confuse the issue in the coming years. Where national security is concerned, the standards are different from those we're familiar with in criminal cases, for example in not requiring a warrant for issuance. See https://en.wikipedia.org/wiki/National_security_letter

Now, you say that these require authority that the people 'would not and did not grant to the government.' I'd agree that they should not, but as I recall there was quite a lot of popular support for the PATRIOT act when it first passed, and the concerns of civil libertarians (including mine) were pretty much sidelined.

No, the time being used to establish the right standard was being spent in Plato's day. Now we know that this is a bad way to act, AND a bad way to run a country. You can never let the watcher watch themselves. Any attempts must be punished as heavily the crimes they could start to cover up.

I go further in saying that these are powers people COULD NOT grant to government. Our legal philosophy (not just current laws) hold that there are things we cannot "agree" to - to be killed for instance, and we can't agree to something on someone else's behalf except in very limited circumstances, and until they are available to confirm those decisions themselves.

Using a NSL letter to gag an otherwise legitimate court proceeding for a period of time wouldn't remove the checks and balances of society - but making seeking redress in court illegal altogether, does. And it effectively makes us slaves - having no power to control or petition our government. As above, we couldn't agree to that.

As for support for the patriot act, 1) Bush knowingly lied about the perpetrators and circumstances of the 9/11 attacks, and the potential remedies. If this was a civilian action he'd be known as a criminal. Many people were convinced by his lies, but ultimately it was pushed through regardless of popular support. 2) It doesn't matter because you can't agree to take someone else's rights away and any government that pretends you can isn't a legitimate representative of any people.

After all, we (The citizens of UN signatories) wouldn't let India end its current "rape crisis" by simply removing women's rights to complain about being raped.

This is exactly what's <supposed> to happen, the DoJ brought the dispute to the judicial branch...

-- Nah. DOJ was trying to <bypass> judicial review. Contra separation of powers, per constitution, etc.

That's not the important part here. If two parties go to court to resolve a dispute over the legality or constitutionality of something that's normal. What's quite unusual is the DoJ attempting to deny the ability of telcos to use the court system at all.

As an analogy imagine that you've just been arrested by a police officer and you are sitting in a dark, windowless room in handcuffs. The officer comes in and you say very clearly and plainly "I want a lawyer, I know my rights". Then the officer responds "you don't have any rights here, you're not getting a lawyer". Most people would probably be outraged, most people would probably experience a chill running down their spine accompanied by an onrush of fear. But this is not so different from what the DoJ was attempting here.

The important difference here is that the DoJ made that argument before a court and didn't decide for itself in a "dark, windowless room". You're invoking an image of unfettered power that doesn't match reality. This was a law suit, by definition it was going to be settled by the judiciary, not the DoJ.

I think the chilling thing is that, right or wrong, many people believe the JD thinks it ought to have those kinds of powers. Any move it shows that looks like they are trying to actually grab it ("You aren't allowed to contest an NSL that way.") makes people uncomfortable.

I do agree that the system, so far, is working as designed, and it is just appearances that are causing discomfort.

One of the main points of the U.S. constitution is to provide checks and balances so that one branch of government cannot ac t unilaterally without oversight. For the executive branch to argue that in this case there is no way to challenge it is disingenuous at best and at worst, as this judge pointed out, unconstitutional.

It's frustrating to me as a citizen that if a government agency decides it has a problem with me, I'm pretty much screwed unless I have plenty of cash to hire the best lawyers.

Or the EFF, it's almost like little guy insurance

Yep. Donate to the EFF regularly. With all luck, you won't need their services; but in the rare case that you do, it's much better to have them still be around and well funded.

Realistically, you are just as screwed if any large organization launches a civil suit against you. Congress frequently produces laws that attempt to mandate the behavior of the Executive branch* while excluding that behavior from judicial review (which courts do not take kindly to and frequently dismiss).

A lot of legislators do not like the Judicial branch and consider it to be an annoying restraint on their lawmaking power; what looks like tension between the Executive and Judicial branches is often as not a proxy for Legislative claims. Whenever you see a piece of legislation with phraseology like '[officer of some executive branch agency] shall do x, y, z, in the following fashion...' pay attention to the word shall. In law this is understood to make the action mandatory, and where the law is very specific on procedures and actions it's basically an attempt to micromanage the operation of the agency in question.

Consider the following imaginary law:

If any person wears white after Labor Day, the head of the Fashion Police shall cause that person to be arrested and fined $1,000. This procedure shall not be subject to judicial review.

Now if you're the Fashionista-general, you have no choice but to arrest people wearing white after Labor Day [for non-Americans, wearing white after late September is jokingly regarded as an offense against good taste]. Failure to do so clearly violates the oath of office required of office-holders in the Executive branch. And the same law says that you don't get to complain about this in court, so judges are supposed to dismiss your case without even giving it a hearing. That will make people mad with the Fashion Police and frustrated with the Courts, even though the blame for this law lies with the Legislature.

Here's an example of a real law that operates this way, from a current immigration statute: http://www.law.cornell.edu/uscode/text/8/1252

Note section (a)(2)(A)(i): the law applies to people who receive orders of removal, aka deportation orders (a); it's explicitly not subject to judicial review (2)(A); and the procedures for dealing with individual cases are very narrowly specified in the section linked to from clause (i), with a lot of detail specifying how people shall be categorized and treated.

And (a) explicitly not constitutional in that it attempts to bypass the limits knowingly placed upon government by the people. An order to bypass auditors is never valid, especially from government.

That you think this is okay is scary. But this is why we need to remember that the law is an imperfect rendering of our intent, not the other way around.

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 nose into that situation. Likewise, there's a school of legal philosophy - a minority one to be sure, but present nonetheless - that Marbury v. Madison, upon which much of the judicial power to constrain the other branches rests, represented an inappropriate overreach by the Marshall court - a criticism first voiced by no less a personage than Thomas Jefferson. See http://en.wikipedia.org/wiki/Marbury_v._Madison#Criticism for example.

That you think this is okay is scary.

You have no idea what I think is OK. I'm telling you how it works now, not how I'd like it to work.

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 audited.

By that tired "X needs Y, thus X implies Y for any interpretation of X" argument the existence of bottled water makes drinking of rainwater fall under federal control via the inter-state commerce act. It's kind of clever in one sense but pointless in another.

And if you don't think this is okay you sure spend a lot of time "explaining" it. We weren't having a cite contest but you sure tried to win, and in doing so you don't miss my point so much as you try to overrule it with precedent.

We wouldn't have a system of carefully enumerated powers if we really didn't care and they all just meant the same thing. In the end, yes, we still end up governed. But in the same way people dislike trusting a single company with all their services they dislike trusting a single governmental body with too much power. And the power we really can't let anyone have is the power to grant themselves more power. If there's a law, or combination of laws, that read that way, it's a bug not a feature.

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.

I too am interested in law, but more with anthropological curiosity. My thinking on governance is akin to the rape model though - all that matters is if they're currently saying "No".

It looked like you were just saying that eminent people (Jefferson) had once thought the courts too powerful among the branches of government and that this had bearing on this situation via some "requires the powers to enforce their mandate" argument.

Where were you going with it?

Oh, just pointing out that quite eminent historical personages had different opinions on the merits of judicial review, and that similar views still exist today, although they're in a minority. I think people are inclined to assume that The Way Things Are is much the same as How They're Supposed To Be, when in fact the country might have developed quite differently very easily, despite having started from the same constitutional beginning.

I've re-read your earlier post and I have to say that any view that requires the supreme court to enact laws they find outside the scope of the constitution is just baffling and tautologically wrong.

Marbury v. Madison didn't establish a power, it clarified the obvious. If the law oversteps the bounds of the constitution the court has no power to enforce it - their and congress' own power being derived from the constitution. Nobody can be ordered by law to do something beyond the scope of law.

But above and beyond that, "The judicial power of the United States shall be vested in [the supreme court]" is pretty clear - congress passes laws and the courts enforce them. If a single entity was desired, it'd have been specified.

It doesn't mean the SC is the final arbiter of constitutionality, the people are, but they certainly have the ability and duty to say no.

I don't subscribe to the view that the Supreme Court has to allow laws dramatically outside the constitution to stand; I said there exists such a school of thought with some influential members, whether I agree or not. The SC can't enact laws, that's what Congress does.

The Executive branch enforces the laws, per article II section 3 of the Constutition. The Judicial branch adjudicates disputes, it does not enforce anything.

The SC is the final arbiter of constitutionality - as Justice Robert Jackson said, it's not final because it's the SC, it's the SC because it's final.

This will open up our Monday morning schedule nicely if we no longer have to maintain:

http://www.rsync.net/resources/notices/canary.txt

It would be our great pleasure :)

Wouldn't this just be considered premeditated intent to violate the NSL gag orders?

I think it works like this. They are not permitted to tell you that they have been served a warrant, but they are always free to tell you that they haven't. If they should suddenly stop doing so, its up to you to draw your own conclusions as to why. That seems reasonable, even in the context of the madness of federal law.

As the text file says however, its always possible that they are being coerced to lie and continue to say that they haven't when they have.

They could physically destroy all copies of the private key they use if they are served a gag order, making it impossible for them to be coerced into maintaining the canary.

Isn't it really about how this "law" is written. Stopping posting negative notifications is equivalent to "notifying the suspect". In the end they can wrap it up in a black box and say "we don't care what mechanism you used, we told you not to notify the suspect and you did, this a violation of this law, whether it was done via posting or refusing to continue post-ing something to a website it doesn't really matter".

I'm curious where the line is drawn.

What if they had a different file for every user?

What if one were to setup an independent site that reported the presence/absence of these files on 3rd party sites, but explicitly pointed out that the absence of the file, given the history of it's presence, meant there was a high probability that a NSL was served to a specific site, for a specific user...

I would be proud of their efforts to push back against an increasingly Orwellian government.

It occurs to me now, that the gag order might actually prevent them from testifying as to why they took down the notification.

Until they've been served the gag order they are under no obligation to follow it.

sorry: "However, she stayed her order for 90 days to give the government a chance to appeal to the Ninth Circuit Court of Appeals."

As at

http://wiki.monticello.org/mediawiki/index.php/Eternal_vigil...

attributed to Jefferson is

"The price of liberty is eternal vigilance."

So, US citizens need to resist the excesses of big gumment and, moreover, as good news, can do so with a simple letter to their Congressman and Senators, if enough citizens do that.

E.g., it was good to see SOPA/PIPA go down for the count after one punch from a flurry of publicity and letters to Congress. I wrote all three of my guys here in NY.

One way to get more such needed letters is more information on the Internet as here on HN. While the EFF seems to do a lot of really good work, the legal system is slow while a few 18 wheel trucks of letters to Congress can get action as quickly as Congress can act which means in less than 24 hours. Two-thirds of the House; two-thirds of the Senate; do not pass the White House, do not collect the president's signature; done. We actually do live in a quite responsive democracy; when enough citizens shout "frog" Congress jumps; and Congress has the lion's share of the power.

For the power of more information, as at

http://www.nysscpa.org/cpajournal/2003/1203/nv/nv2.htm

"'Sunlight is the best disinfectant,'” a well-known quote from U.S. Supreme Court Justice Louis Brandeis".

The NSL situation was so obviously unconstitutional that I have to believe that the W efforts to push through that and similar stuff after 9/11 were understood at the time to be unconstitutional but to give a window, until cases were brought and the courts acted, to permit defending against anymore 9/11s.

Hopefully the FBI and the DoJ didn't do too much damage to honest US citizens and did round up lots of wacko Jihaders dreaming of a harem of 72 virgins or whatever.

This is so awesome. Sometimes it feels like we're barreling towards a monarchy with the executive branch wearing the crown. It made my afternoon to see that there still are operational checks and balances still functioning. I would love to see the judiciary start to rein in the executive branch.

EFF just earned themselves a big bonus from me this year.

This is exactly what the nation needs. We should be pushing back against government overreach where fundamental freedoms are concerned.

It shouldn't feel like a victory that the DOJ didn't prevail here.

Instead, it should feel like a loss that we are even having to argue this. NSLs are flagrantly unconstitutional warrantless searches.

How far gone we are since 9/11. We gave up so many rights in virtually one fell swoop, and now we are having to claw and fight to try to win back some of our most basic protections and freedoms.

It's so bad that we win back a mere semblance of a basic right that should be ours by the Constitution, and we feel like we won the lottery. I was pretty excited myself until I had that realization.

Not to be a party-pooper.

There's a lot of grousing in the tech community -- and HN in particular -- about all the threats to freedom, and for all the problems with the government's responses to current issues like new technologies or terrorism.

There's legitimate substance here, but occasionally, the system actually works exactly the way it's supposed to -- the judicial branch both asserting its independence from the executive and striking down an overreaching action by the latter.

In the actual ruling [1], the judge provides a very apt quotation from another case: "Under no circumstances should the Judiciary become the handmaiden of the Executive." This is particularly important in matters of national security. The tendency is for the executive branch to say the magic words "national security" if those words tend to cause other people to let them do whatever they want.

EDIT: Actually link to the ruling

[1] https://www.eff.org/document/nsl-ruling-march-14-2013

the system actually works exactly the way it's supposed to

The system actually works exactly the way it's supposed to far more often than the cynics like to admit. The system isn't perfect, but I'm not about to stop believing in justice just yet.

I've always found reading Hamdi v. Rumsfeld to be soothing when I'm feeling cynical: http://scholar.google.com/scholar_case?case=6173897153146757....

This is just a few years after 9/11, a year into the Iraq war, and Scalia, joined by Stevens, dissenting because the majority didn't go far enough in protecting an accused terrorist from the Bush administration:

"Having distorted the Suspension Clause, the plurality finishes up by transmogrifying the Great Writ—disposing of the present habeas petition by remanding for the District Court to "engag[e] in a factfinding process that is both prudent and incremental," ante, at 539. "In the absence of [the Executive's prior provision of procedures that satisfy due process], ... a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved." Ante, at 538. This judicial remediation of executive default is unheard of. The role of habeas corpus is to determine the legality of executive detention, not to supply the omitted process necessary to make it legal. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) ("[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and ... the traditional function of the writ is to secure release from illegal custody"); 1 Blackstone 132-133. It is not the habeas court's function to make illegal detention legal by supplying a process that the Government could have provided, but chose not to. If Hamdi is being imprisoned in violation of the Constitution (because without due process of law), then his habeas petition should be granted; the Executive may then hand him over to the criminal authorities, whose detention for the purpose of prosecution will be lawful, or else must release him."

His whole dissent, starting at 554, is worth a read.

A big reason why the system doesn't work when it doesn't is apathy, if more people merely took the effort to inform themselves and work within the system we'd be light-years ahead of where we are now.

> There's legitimate substance here, but occasionally, the system actually works exactly the way it's supposed to -- the judicial branch both asserting its independence from the executive and striking down an overreaching action by the latter.

Note that this isn't over yet. The judge put a stay on the ruling to allow the government to appeal. Note that national security letters have been around since 1978; and have been greatly expanded in scope in 2001. So depending on how you count, that's 12 years or 35 years of lost liberty. I'm not sure I would count that as a system working the way it's supposed to. How many years of living under gag orders do we consider acceptable?

Fuckin' A, man!

Please forgive me for that outburst. But this really puts a smile on my face. I think I'll go give more money to the EFF. Maybe rename my daughter Susan.

>Maybe rename my daughter Susan.

Or just have another daughter...or son?

Maybe so, but if I had another son, I could never name him Sue. http://www.youtube.com/watch?v=-1BJfDvSITY

If this was stayed to allow it to go to the circuit appeals court, does it only apply in the Ninth Circuit?

Not a lawyer, but I'd say yes.

Yes, but hey once the Ninth Circuit throws it out Google and others might be able to plausibly claim[1] they are no longer bound by the gag orders. If it does get by the Ninth circuit then it will go to the Supreme court. Sadly the Supreme Court has been a bit to pro-government to my tastes lately.

[1] Google claims their headquarters are in California, they also move all disputes into California, and so they could claim for the purposes of this statute they are a California company, even though their Incorporation papers are in Delaware I believe. Not a lawyer so can't advise but it is my best guess as to how they would position it.

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.

Concur. As little as I'd have expected to be able to say this when some of the more recent sitting justices were appointed, I think this may be one of the best SCOTUS in recent memory to have such a case appear before them.

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.

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.

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

If the 9th circuit upheld, then it would be binding in the 9th circuit, but persuasive in the other circuits if challenged on those grounds elsewhere.

So then we should hope this goes to the Supreme Court so it can be upheld there and applied everywhere? Or will most smaller courts apply it in other districts anyway, if the 9th Circuit upholds it?

It really depends. For politically controversial stuff like this, lower courts ten to be skeptical of out-of-Circuit decisions, especially out of the 9th, which has a reputation for being lala-land. If it were something mundane, or the circuit was say the 2nd rather than the 9th, then district courts elsewhere would probably consider the decision fairly persuasive, absent a contrary decision in their own circuit. But with something like this, who knows?

Ideally what would happen is for the case to be appealed, for the 9th circuit to uphold, then for a different circuit to come out the other way so the argument can be made that the Supreme Court needs to resolve the circuit split. That's one typical way controversial things like this make their way up to the Supreme Court.

> Ideally... the 9th circuit [upholds], then ... a different circuit to come out the other way so ... the Supreme Court needs to resolve the circuit split.

I think that is the likely outcome, but I think an ideal one would be one where more than one circuit court affirm this standpoint, and the others follow suit. Wouldn't it then no longer need to go to the Supreme Court?

The ninth alone might prove rather interesting given the number of non-traditional communications providers operating there.

The judge is an America hero. The NSL's are Orwellian. I just donated to the EFF, please do likewise.

This is definitely a victory and kudos to the EFF, but keep this win in perspective. The Court only ruled on the gag orders attached to the NSLs.

Therefore, as of now the executive can still issue an NSL, without a gag order attached, which is still the equivalent of a warrant less search and seizure. So there is still a larger fight ahead in getting the Courts to rule the NSLs are Unconstitutional.

Don't just give them kudos. Send the EFF dollars.

I have done more than send money to the EFF, I applied to be an attorney for the EFF and when that did not pan out I contacted them to volunteer my legal services pro-bono. I don't see eye to eye with the EFF on all issues, but when they sued AT&T in 2006 I saw the potential ACLU of technology.

Please read the EFF's press release closely. Specifically

In today's ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional.

There is are two separate issues, overstepping of executive authority and free speech, all aspects of NSL are being declared. Not just the gag section. Now there is a 90 day window for appeal, and I would expect the DoJ to appeal.

>Please read the EFF's press release closely. Specifically

Thanks, I read the Court opinion.

Though I think you need to read my comment more specifically. There is nothing inconsistent with my comment and your comment, I think you just got hung up on the Court declaring the entire NSL law unconstitutional and I reference NSLs being sent in the future without gag-orders.

You are correct there were two issues in the case, but the second issue "the judicial review provision" was only related to the NSL nondisclosure provision. See Page 1 paragraphs 20-22 of the Court Order (issue one and two "collectively refered to as 'NSL nondisclosure provisions).

Therefore, Congress can reauthorize NSL without gag-orders, and they will bc that is what Congress does when a new law is struck down they rewrite it to comply with the Court ruling. Then the NSL without gag-order will be challenged again and this time not under the 1st Amendment like the non-disclosure provisions but under the 4th Amendment.

Given the lack of seriously dangerous threats to the usa we've heard about (and I assume we'd hear), I can't believe that just letting someone discuss a request for information they receive would be cause any real danger.

To be fair there have been some seriously dangerous threats that have been forestalled by government action.

Unfortunately though there is a widespread pattern of many of these folks effectively being entrapped by the government, but there are a handful of legitimate threats even so.

Two thumbs up to the EFF on this one! I just hope it holds up at the Supreme Court level and we can start restoring the checks and balances of our republic.

Anyone know which telco this really was?

It's in the article.

The article says it’s likely Credo Mobile.

They're a fairly great little MVNO out of San Francisco. My wife, who is a customer, loves their customer service. And they’ve spoken out against the Patriot act - here’s tweet of theirs on the subject: https://twitter.com/CREDOMobile/status/4326145876

This ban is stayed so the 9th Circuit of Appeals can consider it.

Question: Does this mean NSLs are now subject to FOIA requests?

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