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Comment by RyanZAG | Hacker News Reader

I agree with you in that a key difference would be if people were held accountable for illegal acts. However, simply investigating the president is not enough - it would actually need to be possible for him to be accused and held liable.

An investigation in which the conclusion is already obvious and no one will be held accountable is not really an investigation, it is only smoke and mirrors. Throwing out one set of nominations as unconstitutional among hundreds is the same smoke and mirrors.

The ability to create a public drama while the real decisions occur underneath is certainly no proof of the lack of totalitarian government. Not that I'd say the USA is a totalitarian government, just that your proof is very shaky.

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Being held accountable is irrelevant. If what people want is someone to be accountable, people will get scapegoats.

The key difference would be that when acts happen that defy the needs and expectations of society that those actions end.

If Keith Alexander was blamed for acting without authorization and imprisoned for treason and then NSA operations went quietly on their way again, that wouldn't necessarily mean anything.

If on the other hand, there was no punishment doled out, but instead any apology was given out and the PRISM program and similar were dismantled, and a new intelligence system were built in its place with support and approval from the public. Maybe something with proper auditable checks and balances, something with less risk to the public. If that was the case, even if nobody was punished, the situation would improve.

Calling for punishment or vengeance will satisfy emotions. It doesn't do anything to change the status quo. I'm not in the US, but if I were, I wouldn't be calling for the President to be held accountable, or anyone else. I would be calling for change of the laws and processes that I felt were violating my rights.

I think this is especially true in a system as complex as government. There is no one person truly responsible for these systems. So to focus on punishing a person is meaningless. People can be forced to do things despite the potential punishment. People can have decisions made by more powerful people attributed to them.

In the end though, it is more important that bad behavior stops than it is that we exact retribution on some person for it happening. If the latter happens without the former, it's worse than meaningless.

Many of us are calling for changes, many people thought electing Obama would facilitate this change. I think these people are the most upset of all; the man ran on a campaign of change ...

There is a general concensus among people across the political parties that things are broken. Congress is not good, the President is not doing a good job and problems are mounting.

The majority realizes that the system is broken (ish), things are bad, the government should be doing something about it instead of prolonging the status quo -- and yet we can't get any meaningful change going.

I just don't understand it.

The election of Obama did facilitate a lot of change within NSA. It simply wasn't the type of change you all thought it would be, but it is an improvement in most respects compared to 2007's DoJ and DoD.

How so? At most he required they get explicit legislative authorization, which they did, rather than potentially being more easily struck down by the courts. Pretty much continued doing the same things as far as I can tell.

A significant paring down of the "watch lists" used by NSA (and TSA too, it seems), the revocation of the previous definition of 'torture', scrapping some of the surveillance programs of no useful intelligence value, stuff like that.

Certainly there is more that can be done, but I think if this whole affair is indicative of the reaction to be expected then I'm not surprised people avoided making oversight of these programs a loud and noisy public debate.

Ah. Those are things meaningful to those suffering directly but not to those designing security systems, which is what particularly concerns me.

I still think a Gingrich or Tea Party level congressional revolution in 2014, bipartisan, focused on "re-establishing effective oversight of the military/intelligence apparatus", should have reasonable odds of going through. There are enough districts which don't financially benefit from this (and a lot which are going to be hurt by it, like Silicon Valley and Redmond), that a number of junior congressmen could probably get elected on it (assuming they're not otherwise psycho).

You guys need to do what we are doing in Brazil, protests every day until government change its position and create a true agenda, and a new pact with his people.. its working over here.. the government are doing now in weeks things it use to take years to do..

We live in a age where polititians are completely obtuse from the people who elect them..

we live in the age of schizophrenic democracies.. the people are much more evolved and sophisticated, and they are still doing the same sort of politics it use to work in the past..

well, we need to make them hear a clear message, they need to hear that things have changed, we changed for the better, and if they insist in not listening to us.. let them know that or they do it, or we will make it work in other ways..

but making them know we are not just that silly harmless sheap that accepts everything anymore.. and that consumism its not enough anymore.. we want and need more.. they will listen.

at least we are having a good experience overhere.. they are aware of us, of our needs and our expectations.. finally!

I agree that it is important to reform the system, not just scapegoating. However, I think you minimize the importance of holding individuals accountable and the effect that has on the system.

For example, suppose Clapper is imprisoned for 6 months and looses his job for contempt of congress (he is the one who falsely told congress that the NSA was not spying on millions of Americans). I imagine it will be awhile before the next NSA leader decides to tell congress a porkie. Done properly, individual accountability has a systemic effect.

Why are you so sure these programs are illegal? Might it be possible that you find them distasteful, but that under our current Constitutional and legal regime, there's nothing for anyone to be "held accountable" for?

The implication is that it's unconstitutional.

And a violation on such scale...

I haven't seen any evidence of programs that are prima facie unconstitutional. You may wish that the Fourth Amendment required a warrant to search any of your communications, but that's not how the courts have interpreted it. Nations have been opening messages that crossed their borders for centuries.

That's not to say each and every instance of these programs has always been scrupulously constitutional, but we never expect our government to get it right 100% of the time. That's why the FISA court exists. You may wish its oversight were stronger or its opinions always public, but again, nothing about how it operates is obviously unconstitutional. Certainly not as self-evidently as some people around here seem to assume.

They are opening messages that don't cross borders.

Deliberately? Which program does that?

If America's founders had wanted the government to conduct secret tribunals, they would have made provision for such in the Constitution.

Instead, their intentions clearly were in the other direction.

On the subject of whether it's a police state, illegality is irrelevant. If the law makes it a police state, it's still a police state.

But that's not the point to which I replied:

I agree with you in that a key difference would be if people were held accountable for illegal acts.

If you think the law makes it a police state, then argue about the law, but RyanZAG was suggesting that some evidence of a police state is that laws meant to restrain the government are not being enforced.

Constitutional challenges come in two forms: "on their face" and "as applied"

The people who argue this is constitutional have really only addressed the "on it's face"/prima facie sort of constitutionality.

Whereas, "as applied" is both harder to defend and attack because we know so little.

Part of the problem is the FISA Court. The court has the power to interpret the constitution, holds secret hearings, the rulings are secret and only government lawyers are allowed.

You can now break the law without even knowing it.

Not really, no.

For starters, the law creating FISA isn't something that one can "break", necessarily. The only ones who can run afoul of it are agencies like the NSA, not the populace at large.

More importantly though, the public law carves out a niche that they allow the NSA to operate under, with the proviso that the NSA get the activities pre-approved and overseen by the FISA Court, and with reports routinely made to Congress. The FISA Court verifies that the NSA's proposed activities fall within the scope of the FISA (as amendmended) and with normal case law.

For the approved programs (even the secret ones) they are approved because of the fact that they fall within the area laid out by public law (in the opinion of the FISA Court of course, but that issue underlies all of law).

Even in unclassified jurisprudence there are lots of examples of closed-door court sessions, gag orders, etc.

Now I agree that there are problems with the way the FISA Court is staffed and composed, but those problems don't derive from the closed-door nature as much as from the fact that a single person is able to stack that Court as he/she wishes.

That is part of the problem. A legal framework, relying in part on secret rulings re-interpreting the Fourth Amendment, have has been constructed for these programs to give them 'legality'. Secret courts, secret laws and secret rulings are blatantly antithetical to a democracy and do give the sheen of a police state, but at the same time politicians and talking heads can refer to these programs as 'legal'.

What amazes me is that Clapper can baldly lie to Congress and not even have to resign, let alone be prosecuted. Lying to Congress is a federal crime! Yet the government spends $40 million prosecuting Roger Clemens for lying to Congress about steroids, and they couldn't even get a conviction.

Also, Clapper has been wrong about many things, including Libya and Egypt. I believe the US government wants total spying because their intelligence agencies are so incompetent at identifying threats. 9/11 proves this as the CIA had identified two of the hijackers as Al Qaeda members, determined they had US visas and then did not tell the FBI or State Department. The NSA had phone transcriptions of terrorists and refused to share them with the FBI. The FBI actually started building listening stations in Africa and the east at great expense due to NSA intransigence.

Before 9/11, they were very vigilant about respecting laws on intelligence gathering. After 9/11 it all went out the window, laws were broadened and oversight has been strangled.

So your problem is that the country doesn't treat people as guilty until proven innocent?

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