Secret government: America against democracy
economist.com
economist.com
He didn't change his mind. He lied to get elected. His team knew exactly what message to hit, riding the wave of anti-Republican / anti-George W. Bush sentiment, to win the election. Obama is a politician above all else, and a scoundrel; but then I repeat myself [hat tip Mr Twain].
Normal people get confused by how a politician's brain works. Typically a person holds a set of beliefs, and attempts to follow those whenever they reasonably can. They have a code of morality, knowingly chosen or absorbed by default, and they try to be good, most of the time. Politicians do not function that way professionally. Work life Obama is not private life Obama. A voter sees what they think is a normal person when they vote; there's nothing normal about the business life of a politician. The really talented ones hold every belief simultaneously, and switch when it's required. With the only restriction being the party ideology; and the only variable within that being the strictness of adherence (it's the same game of ideological flexibility, just played within the party's limits).
In this day and age, to aspire to the Presidency, you're either a psychotic power luster capable of any lies and misdeeds necessary to win the office, or you're an ideologue willing to fall on the sword. The former usually wins.
Just a little clarification - I am pretty sure you make the same mistake that apparently many people do and confuse 'psychotic' and 'psychopathic'. Those are very different things and what you describe seems to be psychopathic (characterized by psychopathy or antisocial personality disorder - lies, manipulation, lack of remorse etc.) behaviour - this behaviour is not typical for psychotic people.
Psychotic person is someone who suffers from psychosis - for example schizophrenia or bipolar disorder.
Psychotic people have really difficult life and it is partially because of the social stigma attached to psychoses - we should not make it worse by associating psychoses with morally despicable behaviour typical for psychopaths.
Sociopathic would have been a better choice: "a personality disorder characterized by amorality and lack of affect; capable of violent acts without guilt feelings"
No, that's psychopathic, not psychotic. You are right that definitions are constantly evolving... but this is not the case. Psychopathic/psychotic are not even close (except the fact that they sound similarly) - they are totally different things and when you associate that term with characteristics typical for psychopath you are seriously misleading. I understand that you are not a doctor - if you don't know what the term means that's ok, please just don't use it.
To make it hopefully easier to understand why this is so important: imagine that you suffer from severe depression caused by bipolar disorder (which is psychosis, therefore you are psychotic). You might be at the verge of committing suicide and you need help... and than you notice that some people confuse the term psychotic with psychopathic - they think you are a psychopath and they expect inability to empathise, willingness to hurt people etc. - get it?
You don't label cancer patients as psychopaths and you should not do it with other illnesses like schizophrenia or bipolar disorder. That's the point - those are illnesses, being a psychopath is not.
There's that famous phrase (Churchill): 'It has been said that democracy is the worst form of government except all the others that have been tried'. But this is more subtle: it's about lying, and ultimately, corruption. Is this a solved problem in hard political science?
I know of various solutions explored in science fiction, notably by Robert Heinlein, Arthur Clarke, Eric Frank Russell, Christopher Anvil, et al. There's game theory, where cooperation 'breeds' more cooperation, in a world of defectors.
But, it seems to me, corruption is now the biggest problem facing humanity. If we can fix that, it'll cascade down through everything else: climate change, energy sources, ecological destruction, sexism, etc...
Distributed dispute resolution services, a market for justice, as the foundation for a society free from most of the issues that plague the stationary-bandit state characterized by attempted monopolies on violence, law, and coercion. A system that lasted many times longer than the US did as a free society before falling to cartelization.
Everybody kept the social peace, because the cost of breaking it was too high: nowhere to go to escape societal retribution, everyone "knew" everyone else or could pick you out as a stranger in the local community if you moved around the island and would get your back-story eventually.
Democracy biggest success, despite its significant imperfections, is the orderly overthrow of government every 4-5 years. Even monarchy doesn't guarantee an orderly transition of power.
Not only that, the larger it gets, the smaller the proportion of what gets replaced at every election. Even if we get some new Congressmen every two years, we still have all the same spies, SWAT teams, prosecutors, defense contractors, etc. And the things with staying power throw money at perpetuating their own existence, so that the Congressman dedicated to halting the proliferation of SWAT teams or reducing the defense budget doesn't stay a Congressman long enough to attain the committee assignments that would allow him to actually do it.
Map: http://www.worldology.com/Europe/world_war_1_effect.htm
I'm struggling to think of many examples from the history of the UK/England/Scotland (and there was a civil war 350 years ago to end absolute power of the monarchy), were there saner royals elsewhere in Europe before everyone switched to keeping their royals as fairly powerless heads of state?
The Queen of the commonwealth for example and shut down the parliament if she wants to (there is a complex process to do it, but it can be legally done), or buy and sell state stuff freely. Of course, in information age, she knows that if she abuses these powers, people will get upset and overthrow her.
Also in Japan, the monarch legally has no power, but the people obey him anyway, this happened many times in Japan history, and seemly the population like it that way because the monarch become a "failsafe" of sorts, every time some non-monarch leader do major shit, the population can rally behind the emperor again and return his absolute powers (and usually subsequent emperors fix the issues, until someone pull a WWII...)
There's an interesting EconTalk discussing the Ancient Greek economy where Russ Roberts asks his guest: "We certainly romanticize Greece as this great democracy; but it wasn't much like the United States, tell us about it"
But after Josiah Ober describes Athenian democracy it ends up sounding like what we call modern democracy is a very poor imitation.
http://www.econtalk.org/archives/2012/08/ober_on_the_anc.htm...
I think people are turned off by the idea of some random "crazy" running things, but that's exactly what I think would provide checks and balances to a government (namely, that the "crazies" don't reach a consensus as easily as the corrupt).
And on another level, our laws would have to be understandable! What would that be like? Would I actually know why I am being arrested?
Moldbug comments that people who use this quote rarely give serious consideration to any of the others. Universal democracies are a very new form of government, and to ignore their problems requires willful ignorance.
At least - a system without elections doesn't breed people, whose primary ability is to get elected.
Of course you can apply lower standards, such as "having some good-sounding arguments is all you nedd", but then the results become quickly worse.
Also, read Newton's Rules of reasoning for a better example of a philosophy that's successfully been at the base of science.
If you'd like the credentials for the scientific method as used over the past 150+ years, let me know. Might even be a fun article to write.
I.e., you are a very confused person.
i.e. neither of us are confused, but you are being dishonest.
You are not only confused about that, but you're also incredibly arrogant (in that you think you discern dishonest motives with such sparse evidence).
Theories attempt to explain why things happen as they do, observations are statements that something has or has not happened.
Gravity is an observation. Let go of an object, it travels towards the surface of the planet (usually). Gravitational theory attempts to explain why gravity happens.
Evolution is an observation. Over time, random variance occurs in living things, and when these variances are beneficial to the life of the living thing, the variance tends to spread through the species over time (give or take). Evolutionary theory is an attempt at explaining how and why this occurs.
Obama has changed his position on issues X, Y, and Z. are observations. That he has done this because he's an evil, blood-sucking politician who says anything to get approval is an attempt at explaining why Obama has changed his positions over time.
Theories attempt to explain why things happen as they do, observations are statements that something has or has not happened."
You are very confused. The observation is that it appears as if the Sun is moving across the sky. The theory is that that's because the Earth is rotating.
You should be able to work out the rest for yourself.
You can never know a theory to be true. A "true" theory does not exist.
Feel free to think whatever you'd like, but this is what people will be thinking of when you say 'theory'.
One of the reasons the British finally divested themselves of their empire is that it was bankrupting them and destroying their civil society. The empire eventually comes home. Everything we've done overseas will eventually be applied to us, and the costs will be ours to bear. Hopefully we'll be as wise as the British and divest ourselves of empire before it destroys us, because it seems like civilizations that do not gracefully exit empire collapse.
It does sound like that. I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead.
Another error, this one more egregious:
None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court.
Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
The article also cites sources selectively, which is unsurprising because it doesn't do any actual reporting but is instead an editorial analysis; so for instance it captures what the law professor who spoke to the New York Times believes, but misses what Orin Kerr, a GWU law professor and widely known expert on computer crime law (and, as I understood it, one of Weev's advocates at appeal), has said about the same process. Kerr has the (mis)fortune of not speaking through the prism of the mainstream media, but directly from his blog.
By way of bona fides, before I'm again asked how long I've worked for NSA: I think the FISC process is extremely bad and poses a long-term threat to civil liberties. But to read this article, you might come away with the idea that the solution would be to fix the FISC, when in reality what needs to happen is for Congress (which retains the authority to abolish FISC entirely) to establish some kind of bright-line rule about the limits of "foreign" surveillance (now that so much foreign traffic routes through the US) and to ensure that foreign surveillance is firewalled off from the rest of the government.
You're wrong. How can the SCOTUS review a FISC decision if those decisions are never made public and if, upon challenge, the government can invoke the state secrets privilege. This is exactly what has happened in the past.
The supreme court doesn't hear cases unless there are two parties. It does not issue "advisory" rulings. But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?
Further, judges don't generally do a lot of constitutional interpretation when issuing warrants. They rely on precedent. If a judge were to step a bit outside of whatever precedent existed on a given topic (for whatever reason), the person against whom the warrant was to be served would later have the opportunity to challenge the warrant, and the constitutional interpretation that resulted in its issue. None of this is the case with the FISC. They are free to interpret the constitution however they see fit without any real possibility of their opinions being challenged or reviewed.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
Nice try, but nope. Just about every Supreme Court justice has been a federal judge previously. Did that mean that there was no confirmation process? Not a chance.
Congress vetted these people to be federal judges, not members of a secret tribunal that makes secret constitutional interpretations that have the force of law and are effectively immune from further scrutiny.
* There are Article I courts; Congress is empowered to create tribunals for which the Article III appointment rules don't apply. Since the FISC is adjudicating policies that Congress is already empowered to legislate (the Constitution being as silent on foreign surveillance as it is on the makeup of the Air Force), not adhering to Article III doesn't automatically make the FISC unconstitutional.
* In trying to pursue my leg of this argument over the past couple days, I've been pretty well slapped down on the idea that appointment issues damage the Article III standing of the FISC:
edit: didn't realize you were the GP :)
This is not correct. 50 USC 1803(b) specifically provides that the record will be transmitted to SCOTUS upon write of certiorari.
There have been non-parties that have attempted to get access to the rulings, and those have been denied.
" But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?"
The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for.
1803(b) provides that the Foreign Intelligence Surveillance Court of Review will do that if the government appeals the denial of a surveillance warrant by that court (which would itself be on the government's appeal of a denial by the FISC) to the Supreme Court.
> The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for.
Not in the provision you point to, which is exclusively for government appeals of denials of warrants in non-adversarial proceedings, they don't provide any "injured party" any appeal path (and the process they apply to is one that an "injured party" would never be aware of in the first place.)
If you read the Appointments Clause, you'll find that the only judges explicitly called out that must go through the advice and consent process are Justices of the Supreme Court. So, while that's true, it doesn't really support any kind of broader argument by analogy.
The only review process for FISC orders is for denials of petitions for surveillance. See, generally, 18 USC § 1803, and particularly subsections (a) and (b); and where that process does extent beyond the special courts set up under FISA (the Foreign Intelligence Surveillance Court and its big brother the Foreign Intelligence Surveillance Court of Review), it goes directly and solely to the US Supreme Court; usually, one does not refer to something that is reserved solely for the Supreme Court as belonging to "the federal courts".
Even if there was a process for reviewing approved petitions, the only people who will know about a petition being approved are the judge issuing it and the executive officers applying for it, so no one who would be interested in challenging an order is going to know that it exists to be challenged.
* How does this process differ from domestic criminal law?
* What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?
* Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?
* Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?
I concede what I perceive to be your fundamental point, which is that regardless of the process used by FISC, the setting in which it operates makes it difficult as a practical matter for any other court to oversee their actions. But then, I wonder whether that's because in domestic criminal law, warrants are mostly confronted as a consequence of the exclusionary rule, and thus involves named defendants.
Warrants in domestic criminal law are targeted at gathering evidence to be used in adversarial legal proceedings in which the target will have the opportunity to see the evidence against him and challenge its providence. And, because of the exclusionary rule, succesfully challenging the validity of the warrants in those adversarial proceedings can nullify the value to the executive of the warrant and the gathered evidence. This encourages circumspection on the part of the government in seeking warrants, since misrepresentation in the course of seeking the warrant can backfire when they attempt to use the evidence, even though the warrant process itself is non-adversarial.
This is decidedly not the case with FISA warrants; information gathered through them is, by design, principally supports extrajudicial action rather than adversarial legal proceedings. As such, there is little constraint on the executive with regard to FISC warrants.
> What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?
FISC warrants (what is at issue here) do not have enforcement mechanisms, as they are simply permission for the executive to engage in surveillance.
> Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?
Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants.
> Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?
If you refer to the gag order that is mandated by FISA with regard to any pen register and trap-and-trace orders issued under FISA -- see 18 USC § 1842(d)(2)(B)(ii)(I) -- other than challenging the constitutionality of FISA itself, there doesn't seem to be much room to engage on that issue.
* If the information obtained from the FISA process is useful exclusively in extrajudicial activity (or, perhaps more accurately, activities in the bailiwick of Article II) and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA), AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently, what injury is being inflicted on Americans?
That's a fuzzy question. Two specific ones:
* You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations. NSA appears before the FISC to obtain a 702 certification, which is nonadversarial and extremely unlikely to fail because a certification describes a target and FISA only allows targeting of foreign nationals. But once that process finishes, NSA gains from the 702 certification the ability to issue 702 directives, which compel Google to act. How does FISC enforce that action? If Google refuses, petitions FISC (as Yahoo did), loses (inevitably), and then refuses, what then? That's what I was thinking when I asked about enforcement.
* Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement? Didn't Google (or Microsoft, I forget which) just threaten to do exactly that?
FISC warrants are a subset of the FISA process; lets not drift.
> (or, perhaps more accurately, activities in the bailiwick of Article II)
I'll stand by my initial wording. It may or may not be that some or all of the extrajudicial action that is taken based on surveillance authorized under FISC warrants is also properly within the bounds of the executive's Article II powers (to the extent that action is, it may be Constitutional, but that still doesn't, in and of itself, make it a net social good.)
Its also not exclusive use, but the primary use. That it has other secondary uses, because those uses are incidental rather than the motivation for the surveillance, does not substantially constrain government action in pursuit of FISC warrants.
> and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA)
It can be effectively deployed against people (including, but not limited to, citizens) in criminal proceedings, especially when the specific person isn't the subject or target of the surveillance.
> AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently
The absence of effective constraints in the FISC warrant process is precisely why we cannot trust this to be the case.
> what injury is being inflicted on Americans?
Well, that question assumes a whole lot of stuff that you just interjected into the discussion and that I don't (as noted above) agree is reasonable to assume.
> You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations.
The FAA 702 (50 USC § 1881a) process is not a warrant process. Its actually one of the least problematic FISC related processes, since it actually provides for adversarial process, unlike the FISC warrant process for physical or electronic surveillance.
> How does FISC enforce that action?
Through its contempt powers.
> Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement?
Who said they couldn't?
I agree, but at that point aren't we talking about a federal criminal case held before a normal federal court?
(Incidentally, the reform I'd like to see is bright line restrictions against using the products of foreign intelligence to make domestic criminal cases.)
I worried the first question I asked might be too fuzzily worded to properly answer and now think I was right. Moving on:
If the only way the FISC can enforce orders and warrants is through its contempt powers, can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that? Doesn't that eject the process from FISC?
I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.
But at that point the surveillance generally can't be effectively challenged, since information obtained illegally in violation of someone else's rights isn't excluded from criminal cases.
> If the only way the FISC can enforce orders and warrants is through its contempt powers,
The FISC doesn't enforce warrants at all, as we've already discussed. The contempt answer was specifically about 702 orders. Please stop trying to rewrite the discussion.
> can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that?
Sure, they can appeal from FISC to the higher FISA court, the Foreign Intelligence Surveillance Court of Review, and from there to the Supreme Court.
> I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.
It'd probably be more effective to engage with that idea by responding to someone embracing it.
also "Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants."
If by "FISA warrant", you mean production orders or surveillance orders to electronic providers, this is wrong.
See 50 USC 1861(f) and 50 USC 1881a(h)
Both make clear, as do the FISC rules, that FISA warrants and production orders may be challenged in FISA court by a party.
If by FISA warrants, you mean something the government can do on it's own without the help of anyone else, then yes, you are correct, you would have to challenge this when they use the info against you.
How? EFF and ACLU have tried that a few times, and they've been rejected by federal Courts either because "they had no standing" - and they can't get standing because they can't get the proof whether they're being spied upon or not because the government keeps it secret (and has rejected all FOIA requests for it), or because the government appealed state privileges.
They've made it in such a way that it it's almost impossible to do it without someone actually leaking all this stuff out. Even Ron Wyden, who was in the intelligence committee didn't know all the facts, and even if he did, he couldn't even tell it to the rest of the Congress.
Everything about this whole process was air tight, so you can't appeal it in any way, or stop it. I've watched the FISA Amendments Act voting. All the Congress heard about it was that "it's necessary to protect against terrorists, so vote for it". And Ron Wyden and a few others said it's being abused, but couldn't say much else.
I admit this thought crossed my mind as well when I read the article. But then I realized that federal court review of FISC decisions doesn't mean much when there is nobody to appeal the decisions of FISC to those federal courts.
The FISC warrants hearings are ex parte, and the vast majority of them are granted. The government won't appeal their victories. They probably don't appeal their losses either, electing instead to refine their evidence and apply again in that sliver of cases where their initial warrant request is denied.
For all practical purposes, then, FISC is supreme. With no mechanism for their decisions to reach the normal federal court system, their secret decisions stand unchallenged and those secret decisions stand as precedent for future cases that come before FISC.
A question for someone more familiar with federal courts than I: can higher federal courts review the decisions of lower courts without any party making such a request, or must cases reach higher courts only on appeal?
[1] This is a different unpublished than FISC decisions. Instead of "unpublished" read as "non-precedential opinions." http://en.wikipedia.org/wiki/Non-publication_of_legal_opinio...
This would have caught the insane redefinition of "relevant" that allows for receiving all call records for everyone, for example.
If the government is the one surveilling you, you challenge that, and then you have standing.
All existing decisions i'm aware of (except the one in the past few days), even the SCOTUS one, dealt with third parties making claims that they were "likely being surveilled".
None of them could prove anything, because nobody has used the info against them. SCOTUS held that they could not establish standing, because they couldn't show it was actually happening. The parties wanted abrogation of the state secrets privilege to get the government to admit or deny whether they were being surveilled.
IE It wasn't known surveillance targets suing, it was "a group of international organizations, lawyers, and media personnel"
If you have a case where someone who was surveilled has been denied standing, i'd love to see it. So far, Jewell has not been denied standing in Jewell vs. The NSA
But suppose the leak hadn't happened. Suppose the government kept secrets perfectly, and nobody could establish standing. Is your position really that the government should be able to violate the 4th amendment as much as it wants, as long as it's kept secret?
Under current precedent, the answer to your questions are "No, not everyone in the US has standing" and "Yes, if they keep it secret enough that you can't prove it, you are fucked", at least given what SCOTUS has said.
At least the latter question has been almost directly answered by SCOTUS. I may disagree, but that is the current law of the land.
Congress could, of course, change that (as could SCOTUS)
Anyway, I didn't ask what current precedent was, I asked what your position is.
???
Actually, SCOTUS was pretty clear, see Clapper v. Amnesty International. If you can't prove they are surveilling you, you don't have standing. I'm not sure where you get "precedent can't have been set". This is just wishful thinking. You are hoping they decide their previous precedent was dumb or distinguishable.
As for my position: To the degree a court is satisfied with that the leaked info shows a plaintiff has suffered constitutional injury, they will override state secrets privilege and grant them standing. That is what has happened so far. See Jewell vs. NSA
To the degree they don't already have the info, and the rest is properly classified (already held to be 'yes' many times), they won't. That will be appealed by either side all the way up the Supreme Court. There are likely enough votes to hear it, and at least right now likely enough votes to overrule/distinguish Clapper, but until that happens, you are stuck.
Furthermore, to the extent that Congress hid actual violations of the constitution behind secrecy laws, the judicial branch has failed in its duty to uphold the constitution. SCOTUS was wrong to deny standing. Protecting our constitutional rights shouldn't require breaking the law just to prove standing first. You seem incapable of expressing a position or opinion about what the courts should do, rather than what they will do or have done, so you'll undoubtedly disagree.
I am not incapable of expression a position, I just don't find it a useful exercise of anything in particular in this instance. You seem a bit annoyed at this, for reasons i can't understand.
If you don't want to know what they are likely to do, why bother asking me rather than anyone else on the street?
The only thing you'll discover is whatever personal beliefs i have about the subject. Since they don't really matter to what will happen, who cares?
It won't help anything. I'd rather be doing things to help than complaining about how the court is wrong on an internet site (no offense meant to you, really!), so I am.
If surveillance is done against me, and nothing is found, then I never hear about the incident, even if it is wholly unconstitutional. If unconstitutional surveillance is done against me, and something is found, but the government keeps the source of that information secret, then the evidence is not challengeable. In an ordinary court, that would be a problem, but if I'm thrown into Guantanamo without an arraignment, trial or anything else, it does me little good.
Even if I somehow find my way to trial, it'll almost certainly be a military tribunal, where the rules of evidence are different enough then the evidence might stand, even if its sources are not disclosed by the government. If the sources aren't disclosed, I can't know whether the evidence was obtained as a result of a FISC decision or action, which does me little good.
The only way for a citizen to have standing in an action as a result of Prism activities is for the government to arrest me through normal channels, which would be surprising, if their information has revealed that I am likely to be a terrorist (JIHAD!), imprison me in a 'normal' jail, then to allow me access to an attorney in lieu of interrogations, then allow me a trial wherein the remove the veil of secrecy over the source of the evidence.
If all of those unlikely events occurred, then you're right, one would have standing whether or not one was found guilty, as either a civil matter if acquitted or appellate matter if convicted, but getting to there seems like small odds to me. And on top of all that, if you're going in on appeal, then the circumstances pertaining the constitutionality of the evidentiary source is polluted by all those other criminal facts of the case.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
The original author (Will Wilkinson) seems to be making a rebuttal against that point in his reply here:
Congress wrote the rules that makes serving on the FISC and FISCR, on assignment by the Chief Justice of the Supreme Court, part of the duties of judges of the district and circuit courts, and the Senate was aware of those rules when it confirms judges to those courts. So, with the possible theoretical exception of any FISC and FISCR judges who were confirmed to their current district or circuit court seats before FISA was adopted in 1978 -- there aren't any actual examples now, though obviously there have been some in the past, and there aren't new opportunities being created -- all FISC and FISCR judges were appointed by the President and confirmed by the Senate to a position from which availability for additional assignment to the FISC and/or FISCR was, under law at the time of their appointment, part of the position.
What's more, if as little as 1 in 100 of the judges they let through were unsuitable, those judges could make up the majority of the FISA court and there's nothing Congress could do about it.
Is this really a practical form of vetting?
You seem to be ignoring the fact that Congress wrote FISA and can change it any time they want to, so "nothing Congress could do about it" is, well, completely wrong.
Its capable, if it wants to.
If it doesn't want to, the problem isn't "nothing Congress can do about it". Its that Congress is content with the results and uninterested in doing anything about it.
I'm pretty sure that if Congress did in fact vet each person appointed to the FISC, that at the very least there would be a more bipartisan makeup of the judges on the FISC instead of being overwhelmingly Republican. Unfortunately, it still wouldn't be adversarial, but the presence of bipartisanship would at least help prevent groupthink and mitigate the expediency at which the court can damage our democracy.
No. What you're missing here is that he is not speaking about the FISA court's warrant process being non-adversarial. He is saying that the process by which laws and permissions are being extended to the NSA/government is based solely on the representations of the government, without rebuttal. That's what's non-adversarial.
It's a huge distinction. Effectively, laws are being created based solely on the statements of the government. The example he gave:
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the "special needs" doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have.
As a reminder: the Fourth Amendment doesn't protect foreigners abroad; the Constitution covers people on American soil, and American citizens abroad, and that's it. There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. The distinction is important because the FISA process pertains exclusively to foreign intelligence. The FISC has no authority to authorize deliberate surveillance of American citizens.
I think the point is that, since there are no appeals from the FISC proceedings, a changed interpretation on the part of that court (what Senators Wyden and Udall alleged to have occurred) is effectively a change in the law.
Second, what are you thinking when you think about changes to the law? What are the contours of the changes you're imagining are created by FISC precedent? Maybe we don't disagree at all, or maybe we're football fields apart in our understanding of what FISC precedent can actually do.
2. I suppose I'm speaking of "The Law" in general terms, in that I don't imagine that FISC takes a red pencil to particular sections of the United States Code. However, "code" is a bit of a misnomer, because it's never "compiled". Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change. As a more specific example of this, I think Senators Udall and Wyden have been pretty clear in their accusations, at least recently. If you don't find their complaints compelling, why not?
This is exactly what I (and the article) meant as well. Likewise Udall and Wyden.
That is, when the court creates new interpretations of existing laws (and the Constitution itself, as in the example), then it is effectively creating new laws. Of course, these are not laws in the sense that Congress passes them. Instead, these become "precedent" to the extent that future rulings can rely upon them.
Now, such interpretation is a "normal" thing that is done out in the open with, for example, The Supreme Court. Of course, there are two (adversarial) parties when this happens.
But, when this (secret) court is carving out these new interpretations of Constitutional law based solely on the assertions of the government (i.e. without adversarial debate), then we have a very big problem.
So, I would also be interested in hearing why the parent doesn't find Wyden's and Udall's complaints compelling.
That's because it well should be. I don't think anyone asserts that it is legally obligated to today, but if we are to maintain a globally competitive internet industry we must start at least making the appearance that we respect the privacy of all those filthy foreigners.
I hate that you have to make that disclaimer. I think the attitude that only people who have a vested interest in the current system could possibly not agree completely with the group think is part of the reason why privacy advocates have so little political clout.
It's really easy to convince yourself that the system is irredeemably broken and any attempts at change are futile when you can't acknowledge that people might have legitimately different opinions on the subject than what you and your friends personally believe. You can't find common ground with others if you reject offhand differences in how they approach a given problem. And when you can't find common ground with others, you'll never have any impact in a democratic society.
But I found this article because Paul Graham twerped (approvingly) about it, and bothered to comment because HN was an easier place to disagree with him about the quality of the article than Twitter.
In doing that, I didn't want the thread to become a gigantic pointless fight about who does or doesn't support the surveillance state. It was a courtesy, is all.
;P
So, I agree. And as much as I find many/most aspects of the FISC to be deeply problematic, the existence of the FISC has in the past few days been a boon (probably for the first time that I am aware). Basically, state secrets claims were rejected because the FISA court's existence displaces such claims. (This is an oversimplified read, and IANAL.)
From the opinion (Do I get to say "FTFO" for the first time ever?) [1]:
> "The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court reject the Defendants’ state secret defense by arguing that Congress has displaced the state secretes privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”)."
> "... the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity"
1 = http://ia600508.us.archive.org/10/items/gov.uscourts.cand.20...
Not entirely true. The issuance of the warrant is not adversarial. However, due to the exclusionary rule, a warrant can be overturned after the fact. Not only does this exclude evidence obtained from the warranted search, it also provides an incentive for police and judges to maintain high standards for warrants. Thus, there is a strong adversarial component in the process, and it's an essential one.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
But Congress has not had a chance to downvote their appointment to the FISC. How can we assume that every judge whom Congress deems fit for the federal bench would also be approved to join the FISC, were the question put to Congress?
Well, not the same vote, since confirmation is by the Senate, and rewriting FISA takes both houses.
But your larger point is well-taken: FISC exists because Congress at one time willed it so. Still, it's not unreasonable to criticize Congress for willingly divesting itself of power to the advantage of other branches of government.
In any case, the main issue isn't Congressional authority. It's the one-sided nature and absence of a workable appeals process. Speaking of which:
> To the extent that it's an Article III court (I still contend it might not be)
I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts?
This deserves a very hard look. I'm not casting doubt on the integrity of the FISC judges. But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts, to develop a bias over time. No matter how much faith you have in the integrity of judges, it seems unwise to arrange things such that only one party has their ear.
One might object that regular judges issue warrants on a daily basis without hearing from any opposing party. However, those warrants are subject to challenges after the fact, and judges are aware of this. The ever-present threat of a warrant being ruled improper serves as a silent counterbalance when the warrant is requested.
It doesn't effectively operate outside of the system of review by higher courts, its just that, since the proceedings are non-adversarial, the only review likely is of decisions that are adverse to the government, which are made unlikely, since there is no constraint on the government's ability to -- even assuming no deliberate misrepresentation -- present information selectively in the initial application.
> But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts
FISC has a higher court (the Foreign Intelligence Surveillance Court of Review) which exists solely to provide oversight for it; FISCR is itself overseen by the Supreme Court.
What the FISA process is missing isn't oversight by higher courts, which it incorporates already, but an advocatus diaboli.
People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted.
Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
> The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections.
It's unclear, from the public's perspective, that FISA warrants are only being directed against foreign entities.
> People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted. Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I hate to keeping beating this horse. But the argument that domestic warrants are equally non-adversarial keeps coming up. So I guess the horse isn't dead. Domestic warrants are part of an adversarial process, if only after the fact. They are typically used to gather evidence for a criminal prosecution. When that happens, the defendant has a right to challenge the warrant. This serves as a counterbalance. Judges, prosecutors, and police know that a bad warrant will likely be thrown out if the criminal case is brought to trial. Thus, they have a very real incentive to write good, defensible warrants. This means it's to their advantage to keep their warrants narrow in scope. And thus the goal of preserving privacy is served.
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Do you mean that there aren't incentives for the opponent of the warrant, or for the government?
If the former, I can only point out that organizations like the ACLU can be quite zealous. I would much prefer advocacy by the ACLU than no advocacy at all.
If the latter, the restraint would take two forms. First, judges and investigators would be aware that overbroad or otherwise improper warrants can be undone. This would incentivize writing good warrants. Second, the warranted surveillance could be halted upon a successful challenge, assuming said surveillance is ongoing. Both of these are meaningful checks.
Right here is the fundamental problem. The lack of effective constraints in the FISA process (and we've already discussed, in this thread, why the domestic process targeting criminal action, despite superficial similarity, has stronger incentives for government restraint than the FISA process) is exactly why we cannot trust that it only surveils foreigners (it is intended to do that, but absent effective constraint there can be no confidence that it is used as intended.)
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Sure, from the perspective of constraint, a synthetic adversary is worse than a real one, and selecting a synthetic adversary in a manner which makes it an effective constraint is tricky, but getting a real adversary into the foreign intelligence surveillance warrant process is, well, difficult to do without serious negative consequences.
But if nobody knows that the warrants have been issued, how can they be challenged in court?
Deleted comment
Any government will need to maintain secrets of some kind, for much the same reasons why people need to maintain privacy from each other. Secrecy isn't only needed for espionage, after all, so if your hope relies on eliminating secrecy completely then I would suggest getting used to the surveillance state...
Did we need that? I think all he did was verify the elephant in the room.
What we should do is fix the incentives. If we want to restrict the targeting of mass surveillance to foreign entities, we should (and could) turn information on citizens gained from FISA into legal hazmat; any evidence a defense team could generate that an FBI investigator got their fingers into FISA data to help a case would/could/should create a huge hassle for the AUSA in court.
If there's some other use we're worried about the USG putting NSA surveillance to, we should identify that specific use, identify the incentives behind that use, and fix the incentives.
That would be an airtight plan if both cops and the intelligence community weren't fundamentally professional, state-sponsored career liars.
As long as it's secret, they can just deny using it, make something else up, and seek a normal warrant like nothing happened (with PC they never would have had without illegal surveillance).
For example, do you really think an organization like the Black Panthers could come to exist in this sort of environment? How about SDS? How about Occupy?
More importantly for rich white men such as us: how about a third party?
Do all the justices in SCOTUS have access to each and every ruling made by FISC? If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS?
In other words, can SCOTUS provide a secondary source of oversight over FISC in addition to the oversight from the intelligence committee in Congress?
No.
> If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS?
No, even if they have knowledge of a lower court decision (and there is an intermediate court between the FISC and SCOTUS), neither a single Justice nor the Supreme Court itself can "pull" a case that hasn't been brought before them by a party.
So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b)
As for the second part, again, you are technically correct. They cannot promote such rulings.
However, they can stay them, per 50 USC 1803(f). In fact, individual justices can stay them.
Unless I'm missing something, it directs FISC to transmit records under seal to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals, and FISCR to do so to SCOTUS.
> So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b)
1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to SCOTUS, only provides for appeal by the government against denial of a warrant.
So it depends on what FISC did :)
I agree that it appears that in the case FISA has authorized something that requires no outside help (IE the government is using government resources), you theoretically have no recourse until they use it against you and you challenge it.
However, the question was about Yahoo/et all, which don't fall under this provision. They fall under others, where they are ordering production or interception by someone else.
For example, 50 USC 1861(f) says "on petition by the Government or any person receiving such order for writ of certiorari"
In general, Congress can't keep a federal question in an article III court from eventually being appealed to SCOTUS. To the degree they have, it would likely be held unconstitutional.
While Congress is certainly welcome to add to the supreme court's appellate jurisdiction, it's pretty well established that even though the constitution's literal text technically allows congress to remove appellate jurisdiction from the supreme court, doing such a thing is often unconstitutional if it leaves no remedy anywhere.
The literal text being: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States ...
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Congress could, theoretically, remove the supreme court's appellate jurisdiction for everything. In practice, the supreme court has held this unconstitutional, under things like Justice Story's theory doing so would violate the Constitution's mandatory grant of jurisdiction over such claims to the judiciary as a whole.
IE the part that says "the judicial power shall extend to all cases"
To the extent that's true, the appeal provisions from FISCR to SCOTUS are also in those sections (or closer to them), not in 1803(b), which is a nonsequitur in any situation other than the government appeal of a denial of a warrant.
> In general, Congress can't keep a federal question in an article III court from eventually being appealed to SCOTUS.
Not true; Congress can -- and has -- removed questions within the Article III domain of the judiciary from the appellate jurisdiction of the Supreme Court, it only cannot do so for those questions expressly within the Constitutionally-defined original jursidiction of the Supreme Court. It has even done so with regard to specific cases already being heard in the court.
The original question was not about denial of warrants, but about FISC rulings and their appealability. As I pointed out, there are plenty of cases where you can appeal FISC rulings to SCOTUS.
You had said it was not possible. I agree the statute does not provide a path to appeal certain types of warrants to SCOTUS, I was skimming 1803(b) and not carefully enough.
However, FISC does rule on more than that, and in the cases most folks have cared about (Verizon, Yahoo, etc), they were rulings that could have been appealed to SCOTUS under the sections I provided
No, I didn't.
If one allows for genuine edge-case exceptions, whether explicitly in law or implicitly by interpretation, how can we prevent the gap from widening into eroding the law completely? For instance, it's not a far leap from shouting fire, to so-called hate speech, and from there to silencing dissidents.
(Note also the use of the word "reasonable" in the 4th; while it has a very specific legal meaning, clearly the courts are interpreting it very differently from civil liberties advocates.)
All federal court decisions are treated by the federal government as law. The Supreme Court just happens to have the last word on appeal.
Generally speaking in the U.S., "the law" is not what the text of a bill says, it is what the courts say the text means.
> And then there's the fact that "the FISA court hears from only one side in the case—the government—and its findings are almost never made public."
Grand jury proceedings are also secret and hear only from the government. That is ok because a grand jury is not determining guilt, it is just deciding whether a prosecution can proceed. Likewise, FISA is not determining guilt, it is just deciding whether an investigation can employ certain tactics and technologies.
The FISC most certainly does use the Fourth Amendment as a major part of the justification of it's rulings. The "secret ruling" that the EFF and ACLU are trying to view was a FISC ruling that held that on at least one occasion the government had conducted surveillance that was unreasonable under the Fourth Amendment (http://www.slate.com/blogs/future_tense/2013/05/29/ron_wyden...).
> "The most important way the courts have shaped 4th Amendment jurisprudence in the last century is through application of the exclusionary rule in criminal cases."
I think this ignores a large body of civil case law built up around wrongful arrests and vehicular searches. Both of these are examples of active jurisprudence over the last century that directly pertain to Fourth Amendment violations.
A violation of the Fourth Amendment is not acceptable simply because they don't use what they obtained in a criminal proceeding. There are a massive number of ways that the government can harm you with the information they collect without ever filing a criminal case.
The fact that those warrants then never lead to ordinary criminal cases is precisely the point.
Not that I agree with there even being a FISA court... just curious on that point.
What bothers me is why a civilised country would even consider that type of system constitutes a court of law.
Dictators and tyrants around the world use pretty much the same model and no one in their right mind would call those legal systems.
I upvoted this as I was reading the first paragraph, even though I had a sneaking suspicion it was just a recap of secrecy state news. I did this probably because I'm a sucker for things that I feel strongly about emotionally.
But as I continued reading, I'm thinking Good grief! Here's some other person rightly upset about where we are but clueless about how we got here or what to do about it. What have I gotten into?
Then I come to this:
"All this somehow got me thinking of the doctrine of "democracy promotion", which was developed under George W. Bush and maintained more or less by Barack Obama"
What? America has publicly and openly supported democracy -- sometimes at the pointy-end of a gun -- for decades. Then several other errors stood out.
I'm sure that W.W., whoever he might be, means well, but we've kind of reached the point here where there are a hell of a lot of people getting the general message that things are fucked up and carrying a ton of baggage with them when trying to figure out how. So break out the pet theories: evil bankers, corporations controlling the government, one party or the other out to set up a kingship, GW Bush policies continues to destroy the country -- whatever emotional baggage they're dragging around, they're bringing it to this discussion.
This is a really bad thing because it trivializes the entire issue. Ezra Klein the other day was talking about FISC judges mostly being Republican, as if the problem here were not that we have the FISA court in the first place, but that the wrong people are on it!
(I find a bit of self-referential critques to all of this; it seems the charges being leveled are those the authors would be most guilty of themselves given the chance, but I digress)
This guy wants to go on a riff about how the select few -- our betters -- are making these incredible decisions about the disaster we've created.
Let's be clear about this: the government keeping detailed records of all the communication and movement of each citizen is not okay, even if 90% of the country voted for it. It's not okay because a democracy cannot survive in a perpetual state of war, and once we are at war with the population itself, it's never going to end well. Police counter-intelligence is one thing. There are probably 10K people in the US that need secret files and should be watched because they are dangerous. Fishing expeditions against huge databases of facts from years ago regarding any random citizen are out of the question. It's not that it's bad or makes me angry. It's that it doesn't work. The system is unsustainable over the long-term.
So kudos to the author for being outraged and making a point about the system broken. I encourage whoever it is to stick around and learn to articulate the good parts of the system as well as the shitty parts. Learn the difference between what a lot of the rhetoric folks read, like about the judges being unaccountable, and what the reality actually is. Otherwise it's just more mindless ranting. (About something many of us are legitimately upset about) Because it confuses the issue as much as illuminates it, this is not helpful.
I'm going to start being much more careful with upvotes for security state articles on HN. Love 'em, but they need to bring more quality to the table to be here.
When I hear people speaking as if 'democracy promotion' were a policy begun under Bush 43, I figure they're just young. Folks under the age of (gasp) about 38 are just not going to remember.
These issues have been festering since the turn of the 20th century, maybe before. It's a result of one edge case piled on top of another.
To try to draw it all into some simple narrative that happened in the last 12 years? It's simplistic to the point of being preposterous.
"After the terrorist attacks of September 11, 2001, U.S. government officials questioned the lack of large-scale American democracy promotion mechanisms in the MENA region, viewing democracy as a means of promoting moderation and stability and preventing terrorism"
http://en.wikipedia.org/wiki/American_democracy_promotion_in...
Thanks to all involved. =)
We have constant political turmoil, constant corruption, and constant interruption by "well-intentioned" but insane government programs.
The world is constantly unstable.
Let's get away from the popularity model of government and move to the competence model.
I think this surveillance was originally a good idea, since all the data's out there and the bad guys are using it. It was abused when it was turned from "listen to all traffic and see if you can find terrorists" to "use this whenever we suspect someone of anything."