NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

I bring up the government's theory not because I agree with it, but because it is virtually impossible to understand their public statements without understanding their reasoning.

Previously, search in a legal sense combined two elements that we've always blurred together:

1. Collection of data

2. Intepretation of the data.

So when a human searches, they are comingled. Light enters the eye, is processed into images in the brain, is elevated into consciousness and draws connections in the front cortex and elsewhere.

But an automated system can do it in two stages. The pictures could be recorded and never analysed.

The question is whether the act of searching includes both data gathering and analysis as inseparable parts or whether they are seperable. And if they are seperable, where does the search reside: in the data, or the analysis?

Reversing your analogy, the NSA approach is like the police having housefly-sized drones in every house, keeping HD video of everything that goes on. Most of the time, nobody sees it. The data is gathered but not analysed.

Is that search?

The issue here is indiscriminate copying of data from third parties through whom your information traveled. Under the government theory it is not a search (because nobody has looked at it), it is not a seizure (because you still have your data), and your person, house, papers and effects were not touched. Therefore it is an activity that lies outside the protection of the Constitutional phrase, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...

ianal or historian.

Somewhere in the constitution you can infer that dismantling and reassembling a government that doesn't serve the people is SOP.

"The tree of liberty is watered with the blood of patriots and tyrants."

Some would say they have you there as well. Romans 13, specifically 3-5[1]. Maybe too many of our politicians are bible students.

[1]http://biblehub.com/romans/13.htm

However, even at the time, there were "elites" among the colonists who wouldn't have agreed. And so its been ever since. The rhetoric of a democratic republic used to sway and motivate regular folks in order to protect the power and interests of a few.

Ultimately, this is a systemic problem, and it's not clear it's even possible for a small number of people to fix.

http://en.wikipedia.org/wiki/Corporate_media

Don't hold your breath. I don't think it's an age thing. I felt like you do when I was in high-school, and/or in college... now "my generation" is well into the range where people my are are serving in Congress and other government positions, and it's still business as usual.

There just seem to be certain types of people, regardless of age, who are drawn to becoming part of the State and who are good at getting elected. And every generation churns out its measure of assholes.

> Glenn Greenwald alleges that the Bush administration attempted to expand executive power, as evidenced by the unitary executive theory propagated by John Yoo. The theory suggests that the President, as Commander-in-Chief, cannot be bound by Congress or any law, national or international. By invoking the state secrets privilege in cases involving actions taken in the war on terror (i.e. extraordinary rendition, allegations of torture, allegedly violating the Foreign Intelligence Surveillance Act) Greenwald opines the administration tried to evade judicial review of these claims of exceptional war powers. In effect, this is preventing a judicial ruling determining whether there is a legal basis for such expansive executive power. With that in mind, applying this privilege makes impeachment the only possible means left for Congress to exercise their duty to uphold the checks and balances constitutionally intended to prevent abuse of power.

https://en.wikipedia.org/wiki/State_secrets_privilege

Since impeachment is a highly unlikely scenario... if a government action is unconstitutional and citizens have a no way of challenging the constitutionality in court due to the government deeming it's actions were a secret, then how is the government not deciding what is considered constitutional or not?

It didn't come off as trite to me (or very anarchic).

I'm gonna have to disagree with you here in general, but the parent post was trite. Yes it was.

Just know that I wouldn't insult you in the same way you have me.

The Supreme Court is, and has been since 1803, the final arbiter of the constitutionality of national security programs.

The Alien and Sedition Acts were never appealed to the Supreme Court because the power of judicial review wasn't established until 1803, but they have referenced the acts in modern opinions and said they would be found unconstitutional.

SCOTUS did in fact hear argument and issue a decision on Japanese internment, mostly famously in favor of the government in Korematsu v. United States, but they also struck down indefinite detention in Ex Parte Endo.

In Ex Parte Merryman, Chief Justice Taney ruled Lincoln's suspension of habeas corpus unconstitutional. This almost precipitated a constitutional crisis, as Lincoln either threatened or actually ordered him to be arrested.

In modern times there were the Guantanamo cases: Boumediene, Rasul, Hamdi, Hamden.

And that's just working off your examples. The Supreme Court absolutely decides the constitutionality of national security cases.

> ... the alleged metadata program is fully consistent with the Fourth Amendment ... Because the Fourth Amendment is not breached, it follows that the First Amendment is not violated either

Which asks for a summary dismissal. The referenced article never suggests that the court lacks authority, at least not that I can read.

So I will continue to deem the title awful.