US court rejects state-secrets defense in NSA surveillance case
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It's as if the government can only audit itself, not external entity (the populous for example) can not review their practices. Even if this judge ruled this way, the judge above can simply overturn it.
To be honest, I am against ever striking, forming/joining a union, or ever going to a rally. I feel strongly about things, share my thoughts and hope someone listens (and obviously vote), but I think this is the most ashamed I have ever been at being a citizen of a country or a human being in general. This is the only judge that has ruled this way, and I have seen plenty of other cases where the judge ruled in the opposing direction. For the first time I feel going out and protesting may be the only option (especially if this ruling is overturned).
Aside, but why? I am too lazy to do such things myself, and I know many who don't see the need as things are good enough as they are from their perspective, but i think this is the first time i have seen an 'ideological' opposition to striking, unions, or rallying.
Don't get me wrong, I would protest if I thought I could (with the help of others) achieve something, say if 30,000 people protested I could attend that if I felt strongly. The problem I have is I've never felt strong enough, nor have I ever seen a protest successful in my lifetime. The country would need to have at least several million protesters (enough to shut down the economy) to make a large impact to effect the surveillance state (at least from what I have seen).
Organizing to improve working conditions makes sense, but the U.S. government stepping in to FORCE employers to meet standards that the union sets is a bit out outrageous to me. If you're doing manual labor and replaceable it's mighty hard to unionize without the government support, I understand that. Unfortunately, because you are replaceable you don't have pull and SHOULD NOT have pull. If a companies working conditions are really that dangerous you can work in another factory or educate yourself and become skilled enough to be worth while to please. Not to mention, if it is that dangerous most people probably wont work in that line of work unless they have no choice, in which case they should be HAPPY to have that dangerous job because they can eat.
Call me calloused, but I would personally rather work a dangerous job and get food, as opposed to robbing my employer. We both earn our keep (the employer and me) and the market sets the price for my work. I am nothing more than a cog in the machine that is the economy.
Having to work a dangerous job is almost always a result of cutting corners in ways that are ultimately negatively impacting on the aggregate economy. What you're doing when you provide a dangerous work environment is saying that it's ok for employees to get injured. When they're injured they probably can't work for the company anymore, and so that company is socializing the cost of their healthcare. The public bears the risk of the enterprise, and the private organization enjoys only the upside; hardly an equitable social arrangement.
In your example of GM, I would actually argue that the unions were not the ultimate cause of the failure of American automobiles, but rather a lack of vision, innovation and competitiveness against the Asian manufacturers. One could also say that dividending endlessly despite failing competitively was a lack of leadership, but the failure was one stemming from a lack of revenue, not an outlandish cost structure. It's true that the unions were getting too much, but that's hardly why GM had to get bailed out.
You're making a libertarian argument that basically says everyone should have to sing for their supper, irrespective of danger, and that's, frankly, a draconian view of the world, IMHO. We don't need to work like that anymore; having dangerous jobs doesn't help advance the economy and in fact actually harms the aggregate economic output.
To be clear, this is just my opinion, you might disagree, but I hope we can engage in civil discussion about this very interesting topic :).
That's been my big complaint with what I understand to be libertarian ideology. It comes down, in the end, to "f--- you, I already got mine" and a pyramid of people stepping on the throats of those unlucky souls below them. It's like a guy hitting a home run off a tee and thinking he's Babe Ruth.
I'm certainly glad that I grew up in a world where my success and health growing up weren't completely dependent on how much my parents had, or what strata they happened to have found themselves on that pyramid. If that had been the case I may very well still be eating generic corn flakes with condensed milk today, instead of having been given the opportunity to demonstrate by merit my qualifications to do the work I do.
Additionally saying that elitism will happen anyways doesn't mean that structural factors play no role or should be ignored. You left out one of the biggest factors of elitism of all: dumb luck! Even if you forbid force and theft how can you claim that someone meritoriously became elite when they simply inherited what they had through no skill or effort of their own?
Likewise you can gain elite status by being given it (such as in a cartel or trust), without stealing it from anyone or using force. Does that fact that the rest of the cartel feel you're pliable enough to warrant being used as their lackey really serve as 'merit' in this situation?
So even playing in the logic you've laid out I've established ways to become elite without merit, and that's assuming your logic is right. I would say instead that the world of interpersonal relationships (politics and sociology) is in reality more complex than your logic allows for, which even further muddies what insights we might be able to draw and apply from that logic. For instance I don't think I'd agree at all that forbidding theft and force necessarily leaves only meritorious actions.
Another large question is how do you account for indirect force or theft? If I burn something noxious and it comes down on a farmer's field as rain and kills his crops, it's not like I stole it from him or used force, right? But the effect is the same for him, whether he even knows there is some single person responsible or not.
Addressing your more concrete examples:
1. The wealthy inheritor. While true that the sudden influx of wealth may confer an undue bump in social prestige, it won't last unless the individual knows how to keep it. Wealth is useless sitting in a hoard, it has to be expended; unwise expenditures will lead to negative returns. In other words, you don't stay rich for long unless you know what it takes to stay rich, which is in itself a form of merit. Even if that sounds distasteful to you, bear in mind that the alternative at which you hint simply involves stealing from this person and giving to those you favor, who are then placed in the same position: wealth, if you can keep it. If they're savvy enough to do that, then they will soon become either your next target or a new elite.
2. The monopolizing cartel. In order to monopolize a market in an environment where force and theft are forbidden, a company must offer a product that is most appealing to customers. That is a form of merit. Now, in order to maintain that position, the company must continue to offer the most appealing product. You might say: they could drive out competition by drastically undercutting their prices. Well, where is the harm in that? The competition either adapts if it can, or dies out; meanwhile, people pay lower prices. Then the cycle of raising prices, thus creating an incentive for competition, thus driving down prices, repeats until the cartel runs out of resources to play this game.
3. Negative externalities. If I pollute your arable land, then I have stolen it from you and replaced it with barren land. It is theft, albeit indirectly, and so falls under the category of forbidden things. The matter of appropriate remediation for crimes has not yet been addressed, so I'm not going to bring it up now.
But you're exactly right.
>> Organizing to improve working conditions makes sense, but the U.S. government stepping in to FORCE employers to meet standards that the union sets is a bit out outrageous to me.
I simply disagree that the government should be involved. If it turns out a factory is dangerous then no one will want to work in it and if they do? Well if they do want to work in dangerous conditions, let them.
The point is, most people wont work in awful conditions and its in the employers best interest not to hurt its employees anyways. In the 1920's when all this hoopla started because the workers rebelled and both the workers and employers were literally shooting at one another (this was also when communism was entering the scene).
Relating it back to this article, its a citizens duty to enact (or attempt to enact) change into the government because the government is there for its populous. A company is there for its own bottom line. The company wasn't forced upon you and you shouldn't force yourself upon it, unless it does so. AKA the company store was bad and forced something unreasonable upon you, for that a union is great and should be formed. In either case unions supported by government intervention are something a tad more draconian in my mind, by denaturing a company and making it about its employees rather than about its product. Leading to issues such as car manufacturers.
Your argument is fundamentally inhuman. The ultimate point of a product is not the product, it is the benefit to mankind. If you sacrifice people for the product, you are imbuing a product as god. That's completely the opposite of reality, in which products are the "product" of humans (and if we're continuing with deities as a part of this analogy, humans would therefore be divine, not products).
A company does not exist in a vacuum, it exists within many larger societal themes. When a company chooses to pursue profit while negatively impacting the aggregate economy, it is the point of regulation to punish such behavior. Without regulation, the whole world gets torn asunder, as it nearly has been many times in recent history.
TL;DR: The correct answer, IMHO, is People>Product. To think otherwise is to err morally.
That's an incorrect statement.
I think its an individual > everyone else (an example would be you care for your family more than your neighbor). A company is owned by someone, if its the stock holders then its a group, if its a private enterprise than its an individual. In either case, the employees want to benefit and so does the employer and its not "morally" correct to abuse either one. Rather, its "moral" to allow each employee to decide what he is willing to work for and an employer what he is willing to pay. My initial rejection of unions were based on the idea that the government came in and has a tendency to side with the unions (likely to garner more votes).
For your other point: The government can be as bad or worse to the economy than any company. If that's your argument you'd have to ignore a significant portion of history where inappropriate regulation has damaged humanity. The point is, the only "moral" regulation is one that robs no one.
> Call me calloused,
Well, not so much calloused as much as completely, laughably, uneducated. The idea that someone in the 1920's-forward can just "get some skills or work someplace else" shows a complete lack of the most basic understanding of what life was like, and still is like today for the working class.
Sounds like you're against the US Government.
>Unfortunately, because you are replaceable you don't have pull and SHOULD NOT have pull.
A clever businessman would organize all these replaceable parts into a cohesive whole, and then having cornered the market, set his own price. That's capitalism in action. The very people who decry it are the same ones cornering their own markets. When its telecoms, cable TV, healthcare, widgets, corn, DNA, etc, its ok, but when its "units of labor", oh, well now its anti-capitalist and anti-american.
So I'll go along with your idea that Unions are an illegal monopoly on labor after we've gotten rid of the government-created construct called the corporation.
The country would need to have at least several million protesters
Sure, but you can rarely get from 0 to millions without an in between.
Assuming the demonstration is in some form about about abuse of power and the resistance to it, it has a great likelyhood of being instructive, I think. State power has a face, it tends to show it on demonstrations, and having it turned on you is just a "nice" way to keep on your toes I believe. Cancer doesn't really count in that sense, not that I want to belittle it.
But not just state power has a face, being a self-righteous mob also seems to feel empowering to some, and while it gives me goosebumps (not the good kind), I don't regret having seen that either, sad as it is.
I know this is shitty adverising for protests, and that I am probably doing them wrong. But those are my 2 cents anyway, even if they didn't change anything beyond what happened on that day, they were all worth it to me, the shitty ones and the great ones (like walking through narrow streets in Berlin Kreuzberg after fall of night, singing songs, surrounded by cops in black riot gear, being greeted by people on the balconies above us... that one was kinda scary for me, but also perfectly peaceful, surreal and inspiring).
The problem may be that this ruling could be taken as having set a precedent. IANAL, but I do know that judicial precedents are huge in the legal system, and can be the basis for years of subsequent rulings.
Federal district courts are like state trial courts. These judges can pretty much do all sorts of things and we don't really care because they'll get fixed hopefully by the appeals courts.
The appeals courts are the first line of actual precedent but only for those courts that are below them (federal appeals - only binding on lower courts in the same circuit, state appeals - only binding on the lower courts of that state).
Appeals courts are not binding upon other appeals courts and usually the US Supreme Court doesn't like to get involved unless it's so clearly unconstitutional or if there is a circuit split where some have gone one way and some have gone completely another (because the federal system is supposed to be much more uniform than than the individual states).
The sad truth is if you want to take someone to court or if you are taken to court, if you really want to be satisfied you better be prepared from the outset to go through at least two trials (one to develop the record and one or more to attack/uphold the record).
You literally could get a judge at the lowest level that decides he's going to rule based on how he feels that day although you'd like to think not.
The ruling rejected the state-secrets argument. “Given
the multiple public disclosures of information regarding
the surveillance program, the court does not find that the
very subject matter of the suits constitutes a state
secret,” Judge Jeffrey White wrote in the ruling.
National security things don't get litigated that often more because nobody has standing.
SCOTUS is basically saying with this precedent "If the executive says it's a war secret, it's a war secret, and the tort case of some grieving family can wait for another day."
So maybe we don't agree with that precedent, and we need a new law. Current precedent did not occur because SCOTUS read the docs and let the government lie, though. It occurred because the justices decided not to read the document, and instead put national security above a tort.
Some stuff I read:
* http://www.silha.umn.edu/news/summer2003.php?entry=200788
Not only do they have to find new cover to justify keeping this in the dark, it also inspires the hope that some of this carte blanche activity granted by the kangaroo FISA Court (and by Chief Roberts to some extent) can be successfully challenged. And, in general, that the need for secrecy (and the activity itself) will someday need to be justified in total.
We lost when we allowed all this data to be concentrated together in this way. We let it happen because it was done by private industry rather than the government, which we wouldn't have stood for. After we let that happen, government access to this data (by subpoena if nothing else) was a given. But even if we somehow forbade the government from using it tomorrow, it would still be accessible to these corporations and their political allies, with even less transparency and less accountability.
The public doesn't know what private corporations are doing, because there is no transparency. If the public knew, it wouldn't care what they are doing, because they are understood to have carte blanche under capitalism. Corporate obligations are supposedly exhausted by making profit or looking out for stockholders. And even if the public cared about corporate surveillance, there is really nothing they could do about it, because the corporation has a 'right' to do almost whatever it wants as long as it has a strong income stream.
If you care about the surveillance and its abuse in itself, you have to go much deeper than sanctioning the NSA.
Any opinions on Rand Paul? I hear a lot of talk, but I'm not seeing any action.
Definition of tyranny according to Wikipedia. "an absolute ruler unrestrained by law or constitution, and/or one who has usurped legitimate sovereignty"
His support of state rights was always (this is my perception) based off: in theory, the constitution and in practice, the idea that government at the lowest levels (and free movement between governments) is the best way to fight tyranny and support human rights.
For instance, Ron is famously on record as saying he opposed the civil rights laws because they were enacted at the federal level.
In his ideal world, there would be no unifying authority between the states, making things as simple as driver's licenses a pain in the ass, let alone the recent rights fights we're having now.
Imagine what you'd be losing - all constitutional rights gone. Full faith and credit clause, gone.
We go from being the United States of America to the States of America. Without a federal government, it's just a collection of countries who happen to share the same landmass.
This is why we need to separate the judiciary from the government or any politics whatsoever.
I am not so confident that the supreme court would find the same ruling since the president have the power to nominate the justices. I find US practice of the Senate questioning the nominee's ideology awkward.
Justices need to have permanent tenure to prevent political influences to affect their decisions.
Perhaps the rejection of the state-secrets defense is really part of some sinister NSA plot.
Something that people don't understand is that metadata is extremely revealing, both in what it tell you about the target's activity (social habits, networks) and how it allows the analyst to build a picture of "what is normal for John Doe".
None of that is the government's business according to our founders, and I'm not keen to give up more of my rights to this administration or the next one.
I guess I'm a stickler, but if you study history enough, you'll be a stickler too.
For example, if I scrape email in an automated manner and send messages to those emails for purpose of profit (say, advertising my business), then I am subject to very different laws regarding spam than if I manually gathered the emails.
I'm sure, given your legal prowess, you could expand a very interesting argument here. Ok, your turn ;)
At an extreme, the constitution says nothing explicit about brain control rays, but if we invent them I am quite confident in asserting that use should be deemed unconstitutional because of rights we should be assumed to have.
If you don't want to use the Constitutional argument (which I believe holds given the 4th amendment, but hey, that's me), then how would you base the argument?
Please advise. I'd really appreciate some insight into how better to communicate with people such as yourself. Thanks!
EDIT: I see you've got a law-talker email, so I'm expecting something really awesome! Lawyers are the best!
Someone in a sibling post to yours pointed out: but in 1789 it wasn't possible to tail everyone. That's true. In 1789, if you wanted to watch someone's comings and goings, you had to post a policeman outside their house. Today, you can put cameras everywhere. Similarly, in 1789, people didn't regularly update third parties with their exact location every few seconds. But today people do just that with their cell phones. But there is no legal principle that says that police investigatory powers that were previously legal become illegal as soon as they can automate the process. And moreover, especially in front of a conservative Supreme Court like the one we have, "results oriented" arguments aren't going to fly. You can't start from the position of saying: "we want to make the surveillance state illegal" and try to figure out how to re-purpose the 4th amendment to make it so.
Basically, I think Constitutional challenges to NSA surveillance are not really going to have much impact other than chipping away at the edges. I can imagine a future in which a Supreme Court reevaluates things like the third party doctrine in light of how people communicate in the modern world. But: 1) conservative jurists don't like to do that at all (they're "original intent" kind of people); and 2) even liberal jurists don't like to do it until there is a critical mass of public thought on the side of that interpretation.
The Supreme Court could pull a Roe v. Wade and find a far-reaching protection of privacy and communications in the 4th amendment. That could invalidate large parts of the surveillance state, including things like drone surveillance of public areas. But they're not going to do that until at least a large minority of people in the public and in academia think that way.
And that's the problem with people who oppose the surveillance state. They're a tiny minority. They can't get Congress to act, they can't get the President to Act, and they can't even convince enough of liberal academia to support their position to get "living Constitution" judges to act. So the policy position is basically dead in the water.
I still think Constitutional arguments are more likely to get traction given their marketing potential: people get worked up when you tell them the Constitution is being trampled. These arguments may only be indirect ("chipping away"), but sometimes all you need is a toehold.
And some people get worked up when you lie right to their face and claim that something is Unconstitutional when the Constitution doesn't touch it at all. :)
"...papers and effects..."If you send a letter to someone, is it your paper, or is it their paper? This is really crucial, because the types of communication at issue aren't like postal letter that might have qualified as a "paper" under the 4th. Postal letters are sent sealed to the recipient. They are not copied or stored or archived by any intermediary, or even seen by any intermediary. But all of these things happen to your Facebook posts and gchats and gmails. And some of the things that are at issue, like Verizon's call detail records, are never even in your possession at any point nor are they generated by you! They are some third party's observations of your activities. How do you say that is your "paper" rather than Verizon's?
Also, historically, the protections that exist with respect to third parties' information about you are dramatically less than the protections that exist with regards to information in your possession. The government needs a warrant with probable cause to rifle through your office looking for tax documents, but can get your accountant to give up any information he has about your finances with a simple subpoena. This was as true in the founder's time as it is today.
I can get on board with the idea that "papers" encompasses digital documents in your personal possession. Maybe even direct digital transfers between computers. But documents stored and archived by third parties that look through those documents to target advertising to you? I think you've left the orbit of the 4th amendment at that point.
Also, even "papers and effects" doesn't give you enough mileage to attack other sorts of surveillance: drone cameras recording your comings and goings in public, aggregation and indexing of your public forum posts, etc. That's what I really mean when I say the 4th amendment doesn't say anything about "monitoring."
However, I feel pretty good about any public effort to end the post-9/11 Strangelovian affair we've got going on in this country.
This is, IMO, the key. You're right: things like that were never (rarely?) categorized implicitly as illegal, because they were things that people didn't consider POSSIBLE. Unfortunately, most of our legal framework is based on the idea of precedent.
Our options are: - pass laws to explicitly prohibit this behavior - argue successfully in front of the courts that this behavior is counter to the constitution's provisions.
Since most people seem to figure that the first is nearly impossible, especially since the gov't uses secret courts and documents to argue that this doesn't apply to what they're doing (e.g., waterboarding is not torture, "reasonable" means "collect all the things", and so on), we are seeing publicity on the second front.
Perhaps you could wire up some sort of "facebook app" that would have people talking to you encrypt their messages to you with your public key, but I doubt you could really implement that in a way that would prevent facebook from getting the plaintext (or at least make me confident that they could not). You would also need some sort of browser-side extension to decrypt, or have to copy-paste the messages to decrypt.