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Comment by nickff | Hacker News Reader

It is troubling to see that all the arguments presented by the US government in this motion are based on the preservation of government power and the ability of its agencies to conduct surveillance, rather than the constitution and laws passed by congress.

Any and all concessions granted to plaintiffs in this motion are exercises of the discretionary power of the federal agencies, rather than acceptance of the limits which the agencies are legally obliged to comply with.

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Actually, the core of the counter argument is that the executive can declare anything classified.

The argument for publishing from the companies is that this information is not classified, but it's not their decision, it's (basically) the President's.

http://www.fas.org/sgp/crs/secrecy/RS21900.pdf

>The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commander-inChief,4 the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security ... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”5

The President decide's what's classified, the Supreme Court agrees that the President has the constitutional authority to declare things classified. End of story (at least for this case).

I think in general, it's important to note that the Courts have always ruled in degrees. Nothing is absolute (which is why people can get thrown into jail for hate speech), and the courts are the ones that decide up to where the line gets to be drawn, balancing between rule of law and freedom. The discussions about surveillance (and nat. sec. associated) are relevant.

I agree that the argument being made by the United States is based on the ability of the executive to classify things. What I wrote was that the bulk of the argument is dedicated to the preservation and extension of government power, rather than compliance with the constitution and laws. Where the constitution is mentioned in this document, the government is describing how and why its explicit protections of fundamental rights should be circumvented, in favor of the broad investment of power in the executive.

It should be noted that the government described no limiting principles which would constrict its ability to censor or otherwise coerce any person.

The limiting principles seem to be encoded in the law[1] that provides the basis for most of the government's arguments - FWIW, passed by both houses of Congress and explicitly granting this discretion to the executive branch.

Most of the recent furor seems to be around whether the NSA is actually complying with (d)(1)(A) and (B) or is just gathering up all of our information without the court order required for surveillance of any U.S. citizen inside the U.S.

[1] http://www.law.cornell.edu/uscode/text/50/1881a

What purpose would it serve the government to describe its limits?

The government could acknowledge limits, which would be made permanent by a court ruling; these would serve to protect the rights of the citizenry.

Many legal doctrines require that limiting principles be attached to each power granted to the government.

> the executive can declare anything classified.

Scary because this simple tool can be used to justify and do just about anything.

So the Supreme Court somehow carved a First Amendment exception to the President just because of his role as the Commander-in-Chief?

What should have more weight: a very specific prohibition on Congress (and therefore government) on abridging freedom of speech, or some vague thing called "National Security", a concept which by the way is not mentioned nor can be inferred at all anywhere on the constitution?

This shows, if nothing else, that realpolitik is the guiding governance philosophy.

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