Comment by teilo | Hacker News Reader

Comment by teilo | Hacker News Reader

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So what you are saying, in effect, is that government organizations, which are governed by public law, should be able to decide for themselves what that law actually means, by instituting secret courts who are not answerable to the public?

Given that the activities of the DOJ and the NSA do in fact have a direct and immediate impact on individuals that the public law is written, ostensibly, to protect, how can it be argued that these organizations should be allowed to interpret the law in a secret manner?

My point is, that a law which as written to govern the activities of the DOJ and the NSA, does in fact apply to the public.

Consider: there are many laws which govern the activities of the police. These laws are public laws, and effect the public directly. When the police violate these laws (as they often do), a public court interprets the public law with which said police failed to comply, and thus violated your, the public's, rights. The secret FISC courts make it impossible for you to have any recourse in the manner in which your rights are being violated.

This is the stuff of communist China.

No, he doesn't have to make that argument, because Congress deliberately passed rulemaking authority to NSA with the FISA court as a limited check, acting as an agent of Congress.

Congress has the authority to do that, just like Congress doesn't have to pass individual acts determining each line item NOAA spends money on, or how exactly EPA will monitor industrial emissions.

I'm not saying Congress was smart to concede this authority to NSA and FISA; in fact, I think doing so was a dereliction of their duty. But what it wasn't was a power grab by the surveillance state. Rather, it was Congress being too short-sighted and bored of surveillance issue to properly regulate it.

The argument is: "For law to be law it needs to be at least in principle knowable by the people to whom it applies."

My point is that even if the law applied specifically to the NSA/DOJ/FISC, it still applies to each individual, because the laws in question specifically govern how that NSA/DOJ interacts with individuals.

No one here is saying that the NSA is acting outside the law. That's the travesty of the thing. They are not. They are doing what congress allowed them to do. But the fact is, congress intentionally setup a system which has, in essence, unbridled power. When you tell a group of enforcers "the law means what you think it means", this is what the inevitable result will be.

Exactly so. The right way to think about these "secret laws" is that they aren't laws at all. Take the most pessimistic interpretation you can come up with, as long as you stay within the framework of "this is what Congress authorized NSA to do". FISA : Article III Courts :: USDA Inspection : Certified Organic.

> But what it wasn't was a power grab by the surveillance state.

Hmm. To me it looks like the supporters of a surveillance state did something clearly illegal for a few years, and once it started to come out they got the laws changed to legalize it, grant retroactive immunity, and prevent any meaningful oversight -- doing their best to prevent any real debate on it.

As part of changing the laws, intelligence officials have repeatedly failed to disclose key information, inflated the successes of these programs, and on at least some occasions lied to Congress. The chairs of the House and Senate Intelligence committees are strong supporters of the surveillance regimen, and have worked closely with the administrations throughout the years.

Would the 2008 FAA debate (which was pretty close -- 40+ votes for the Bingaman amendment) have come down differently if people knew the breadth of the phone and internet metadata tracking and definition of "relevant"?

So it looks like a power grab to me ...

I understand this point approximately well enough to determine that it's not relevant to any of my points. The FISA process operates under legislative authorization. The congressional motivation to create this dumb process is less relevant to me than what the process actually is. You say FISA is a power grab by NSA; I say FISA is an abrogation of congressional authority to regulate foreign surveillance. Both conclusions lead to the same place, so why bother arguing about it?

well the distinction is on one hand, if it were truly a power grab, one could hope that FISA would get overturned by congress at some point... if congress just handed over jurisdiction and just washed there hands of the whole thing, then you can be pretty certain this will never be overturned until congress has a major shakeup...

I personally am in the camp that believes congress washed their hands of this matter long ago

We're in the same camp.

> To me it looks like the supporters of a surveillance state did something clearly illegal for a few years, and once it started to come out they got the laws changed to legalize it,

FISC was created as part of a mechanism to reign in potential legal and illegal activity by the intelligence apparatus: http://en.wikipedia.org/wiki/Church_Committee.

True. And the PSP starting in 2001 was an explicit end run around FISC. Starting in 2004 FISC got involved but there were continued concerns about the legal basis ... so the FISA Amendments Act made it legal.

Do you think it also can legitimately be explained as Congress lacking the technical understanding necessary to pass adequate legislation in this regard? Or does that fall under the domain of 'too short-sighted'? Perhaps the lack of necessary long-view is a result of fundamental ignorance of technical issues?

Do we know where the pressure/lobbying for passing rule-making authority was sourced?

I'm not on the 'power grab by the surveillance state' wagon, but I am keenly interested in where the sources lie and what arguments convinced Congress to pass off rule-making authority.

I think it's a structurally similar but substantively different problem that resulted in FISA.

It's not that foreign signals intelligence is too technical a topic to regulate, but rather that FISA necessarily deals in the whole sweep of the most sensitive secrets the USG handles. One imagines that virtually any sensible bright-line rule a legislature could come up with would immediately compromise some prima facie legitimate objective that NSA might already have. Worse still, the process of sorting out these conflicts between pragmatism and principle involves a sort of survey of the whole landscape of secrecy --- which, suffice it to say, is not a terrain Congress is comfortable wandering around.

That's not to say that all, or even most, of what NSA does is prima facie legitimate! It's just to point out that there are probably a diversity of legitimate programs that need to be accounted for, but somehow accounted for without betraying them to the world.

Thanks.

Okay, so it almost sounds like the problem here is Congress is reticent to dig into surveillance issues, not because they can't keep the proceedings secret during a hearing on classified matters, but because passing legislation that responds to issues uncovered during such a hearing would have the undesirable effect of promulgating exactly what potentially problematic issues are at play in the text of laws (which would then have the undesired effect of notifying legitimate enemies/adversaries/targets as to what the specific technical capabilities of NSA, et al., are). So, if this is somewhat accurate as assessment, the congressional response is to then create a legal gatekeeper that can adequately assess the sensitive nature of the issues and (hopefully) provide sane guidance and oversight without codifying problems in laws. Hence, the prevalence of rules and policies that allegedly safeguard citizens, but no specifically detailed laws on the matter?

Now, the task appears to be interrogating whether or not this is a valid protection of the citizens' rights without violating or unintentionally weakening the Executive powers we depend on for national security, right? Given that the leaks have publicized an alleged extent of sigint activities and capabilities, at what point does Congress act to legislate legitimate safeguards?

[edit: a bit more clarity]

EXACTLY (i think!). And the answer to your follow-up question appears to be "no". It's an open question what the next step should be to augment (or replace) FISA. The system we have now countenanced NSA's requisitioning of Verizon's entire domestic call database under the "business records" extension in PATRIOT.

You're trying to conflate two different things. "Secret laws" are dangerous because it's impossible for individuals to conform their conduct to laws that they don't know about. There is no such danger with FISC rulings because FISC rulings don't great any standards of conduct for ordinary people.

A separate issue is the process by which executive discretion is exercised. Take a simple, less politically charged example: drilling on federal lands. The President has the legal authority to set policies for drilling on federal land. It is not illegal for the President to conduct this policy-making in secret. I don't think it's good government, but it's not illegal.

FISC is similar. The most important thing to understand about FISC is that it was a Congressional response to executive surveillance activity that was previously happening without any judicial oversight. Three Constitutional principles give the executive substantial latitude in engaging in surveillance activity: 1) records held by third parties are generally not protected by the 4th amendment; 2) non-citizen and non-residents generally don't have 4th amendment protections; 3) the executive has supremacy when it comes to matters of national security and war.

These three principles give the executive a lot of latitude in conducting surveillance. It can tap the phones of foreign agents. It can collect information like phone numbers dialed by citizens. It can do that all Constitutionally without getting warrants. FISC was an attempt to insert at least some judicial accountability for things that would otherwise be entirely within the executive discretion. That's not "the stuff of communist China." That is a compromise intended to get around the fact that the Constitution really doesn't look favorably upon the courts' second-guessing the executive when it comes to war and foreign affairs.

There is also the underlying question of whether all Constitutional violations can be remedied in the public courts. This is not clear that this was intended to be the case. Many people think that in some cases, especially when national security is concerned, the executive is empowered to interpret the Constitution in good faith, and while it is obliged to act within its bounds, its interpretations cannot be second-guesesd by the courts.

Is there a point at which current actions of the NSA fall outside the war powers and foreign affairs? Is there a point at which vacuuming up data on millions of non-combatants steps outside the realm of a valid argument for national security? Especially when that data is used/shared with other agencies for purposes that fall outside national security and war powers?

[edit: I am seriously asking about legal/constitutional concerns and interpretations. I just re-read my comment and worried that it sounded potentially dismissive or combative, which is not my intent.]

You are using much too narrow a definition of "law". Laws do not only restrain you from harming the liberty of others. They also restrain others from harming your liberty. Or, in this case, the law enables others to restrain your liberty, and gives you no remedy in the face of said constraint.

Furthermore, law making does not end when the President signs a bill. Courts regularly interpret and shape laws in a manner that far exceeds the intent of the writers or the limitations of the Constitution. However, in the light of day, we have a remedy for this. We can appeal, in a public manner, such bad decisions, and reverse the over-reach of the lower courts. By allowing secret courts, you are, in fact, allowing secret law-making, because lacking the oversight of the public courts, the over-reach of the secret courts is unchecked.

When, in spite of the constitutional limits on executive power, congress gives the executive branch the authority to spy on everyone, and the only mediating factor is a secret court, how is that not the stuff of Communist China? How that executive power originated may be different, but the end-product is the same.

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