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Comment by tptacek | Hacker News Reader

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.

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> 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.

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.

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.

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