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I think you're focusing on the wrong thing. It doesn't really matter if it's legal or constitutional, because if it's not then they'll change the laws or reinterpret them in a new way or write a new Patriot Act.

What we should focus on is whether a government should be allowed to operate in secrecy, without any public oversight or knowledge, and whether the government can be morally justified in surveilling citizens without probable cause.

It matters to me, at least, that the law be followed as written. Rule by whim and secret dictate does not seem like a good system of government.

It matters to me too, but it's not the root of the problem.

What if the law says that secret courts can decide using secret proceedings?

> What if the law says that secret courts can decide using secret proceedings?

Then at least it's on the books as a choice our society has made. OP's issue is there's currently no clear legal chain of certain programs back to a democratic decision.

The FISA courts have been authorized by an Act of Congress. That's what the checks and balances are for, though, and the courts can overturn it.

I wonder if the system will stand uo though. The addiction to bigbdata is strong once tasted, and spy agencies actually enjoy getting away with stuff.

>Then at least it's on the books as a choice our society has made.

A handful of elites handing responsibility to a handful of FISA judges in closed/secret court is far, far a choice "society" has made.

From the norms and practices of the USG, I imagine almost everything the NSA does is perfectly legal. SCOTUS will respect the Executive in terms of its state secrets argument and Congress's leadership in handing responsibility to managing these things to FISA will also be deemed lawful.

"What we should focus on is whether a government should be allowed to operate in secrecy, without any public oversight or knowledge, and whether the government can be morally justified in surveilling citizens without probable cause."

Actually, it is the problem for precisely that reason. What it boils down to is the Rule of Law. If the people at the top can do anything they want and never face any sort of prosecution, it not only sets precedent for the rest of the big wigs to act the same way (banking crisis anyone?) but it also reveals the farce in a more public way than has been true in the past.

The rule of law has never been perfect, and certainly so in America, but I feel like before the internet only the most egregious violations came to light, whereas now the farcical nature of the system is being revealed across the board. When there is an undermining of the rule of law, people will begin to completely disrespect it, and society will actually become more lawless (in the sense that people break laws willingly).

This is beyond the three felonies a day rhetoric. I think the inner city is a perfect microcosm of this.

Clapper lied to congress bluntly. He should be facing prosecution. Why isn't he? Because DOJ or whatever DA doesn't have the balls. Why don't they have the balls? Good ol boy system? Corruption? Blackmail? (you know NSA has the dirt on the entire SCOTUS and DOJ) Take your pick, the point is that the branches of government are compromised. (including the fourth estate).

If you want things to change, the very first thing that we need to do is prosecute and jail those who are undermining the Constitution and doing so in blatantly illegal ways.

Without justice there can be no peace.

Really the problem is the people we are electing. The voting public has the effectiveness of their vote diminished by a forced two party system and lack of campaign reform. We also have a large voting base that are single issue voters and don't care about anything except a single social issue like reproductive rights or marriage equality. Getting the right people in office would solve this problem but Americans aren't informed or interested enough to make this happen.

> 1) How are broad secret court[4] and non-court[5] orders constitutional?

There are two broad concepts these rest on.

First, is that many of the NSA's activities do not require court oversight in the first place, because they rest on the executive's broad powers in foreign affairs. By and large, the Constitution does not apply on foreign soil, and so the NSA does not need a court order to spy on e.g. Angela Merkel. The crucial thing to understand about the FISA Court is that it's not an attempt to take something that previously required a warrant from a regular court and make it a secret proceeding. That would be unconstitutional. Instead, its an attempt to take a process that Constitutionally requires no court oversight and inject some court oversight to ensure that the NSA stays within its foreign mission.

The second broad principle is Smith v. Maryland plus the broad subpoena power. Smith v. Maryland says that information you put in the hands of a third party is not protected by the 4th amendment. The subpoena power says that you can always be compelled to turn over information pursuant to a valid investigation. The subpoena power is very old. It predates the Constitution by hundreds of years.

The anti-NSA side generally misunderstands the context of the 4th and 5th amendments. The background rule is that the government is entitled to evidence relevant to an investigation. Heck, even private litigants are so entitled. If you're suing a company, you can serve a subpoena on a third party obligating them to turn over documents relevant to the lawsuit. The 4th and 5th amendments are exceptions to those broad powers. And in an age where everyone's information is floating around in the "cloud" where third parties have access to it, Smith v. Maryland gives the NSA a very wide latitude in which they can operate and still in good faith say their programs are legal.

Thanks for the reply! Just so I understand, the third party doctrine and pen register precedents are what these programs rely on? If so, why haven't they been defended on such grounds?

The EFF, ACLU, and now Wikipedia have a whole bunch of lawyers who strongly disagree with your assessment, but they have been unable to argue these points in an adversarial court because the Executive has resisted even addressing the question. If the Executive's opinions are backed in strong legal precedent, it would save everyone a whole lot of time if they just got to those points.

I absolutely agree that they should let a court decide what the law is.

As usual, rayiner has answered these questions better than I can. Here is my take anyway:

1) The short version is that there is a difference between collecting information and looking at it. The NSA doesn't look at or act upon any metadata it collects without first obtaining a warrant from a judge. It just sits there on a server until government lawyers can convince a judge that evidence shows that the data is relevant to a time sensitive security matter. You may not personally believe the government when they say that, or trust that they will always get a warrant to look at information that's already in their possession. But, that's the process. As of right now, the judicial system takes them at their word. That's why the 4th amendment isn't being violated. They still need a warrant.

2) Evidence collected via parallel construction is not withheld from the defendant, just the method of obtaining it. If the DEA says "We have a tape of the accused discussing drug trafficking", that defense will be notified of that tape's existence during discovery and will be able to hear it and prepare for it before trial. It's just that the DEA won't have to say exactly how they got the tape, as not to reveal the full extent of surveillance programs. This may or may not be an unfair advantage for the prosecution, depending on the details of the case. That's why we have judges, who are in fact specialists at deciding what's fair or not fair to present as evidence during a trial.

3) The Executive, Legislative and Judicial branches of government have all weighed in on these programs and approved them in some form. That's the bottom line. You may disagree vehemently with their judgement, but this is how the American system of government works. If all three branches of the government agree that something is legal, then it's legal. Everyone is allowed to interpret the language of the constitution in their own way, but that has nothing to do with the rule of law. If you have a different interpretation than the government, vote as many of them out of office as you can and encourage others to do so as well.

I don't agree with you, but I fully support your use of the democratic process to change public policy to suit your beliefs.

First, thanks very much for replying. This the first time I've been able to get direct answers to these questions. I really appreciate that you took the time to reply.

That being said, we do seem to have a significantly different interpretation of the Fourth and Sixth Amendments. Hooray! We've identified a big root cause of our disagreement! It's a start.

Additionally, I do not agree that the Legislative has been sufficiently informed of mass surveillance programs, and sometimes they have even been knowingly misinformed[1][2][3].

Finally, I do not agree that the Judiciary have signed off on these programs. For the public-facing Judiciary, they haven't even been able to get to the point where they can address the legality of these programs because the Executive have always blocked with standing and state secrets claims[4][5][6]. For the secret Judiciary, it seems that the Executive has also misled them[7][8]. Also, these courts are not adversarial, which opens them up to severe bias and capture[9][10].

Thanks again for your response. Would mind giving some citations to support your positions? I've tried to cite evidence for all of my positions.

Normally, the next step is to try to think of a set of criteria that would settle the differences. Here's mine:

1. The Supreme Court rules that mass collection of domestic information by the Executive does not require a warrant (thus confirming your interpretation of the Fourth Amendment).

2. The Supreme Court rules that parallel construction is constitutional (thus confirming you interpretation of the Sixth Amendment).

What are yours? What criteria would change your position?

[1]: http://www.forbes.com/sites/andygreenberg/2013/06/06/watch-t...

[2]: http://www.theguardian.com/commentisfree/2013/aug/04/congres...

[3]: http://www.usatoday.com/story/news/nation/2014/01/14/sanders...

[4]: https://www.eff.org/deeplinks/2013/02/supreme-court-dismisse...

[5]: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...

[6]: http://arstechnica.com/tech-policy/2015/02/fbi-really-doesnt...

[7]: https://www.techdirt.com/articles/20130821/16331524274/decla...

[8]: http://www.slate.com/blogs/future_tense/2013/06/17/governmen...

[9]: http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-...

[10]: http://www.washingtonpost.com/2014/07/05/8139adf8-045a-11e4-...

Marbury v Madison says that the Supreme Court has the final authority to interpret the Constitution. Whatever they say about the Fourth and Sixth Amendments is the law of the land. I might change my mind based on the actual arguments used and the logic in the written decisions, rather than the ruling itself. It seems like you would be open to change as well, which is indeed a good sign.

rayiner is the one to go to for citations and case law. If you think that something in particular that I've said is factually incorrect, then I will gladly stand corrected. After going through your citations, there seems to be a lot of differing opinion and blame shifting regarding who said what and when. I'm not surprised that politicians and judges would say "The NSA never told me about X or Y" if the programs appear to be unpopular. If the Legislative branch is really unhappy with the NSA, they can propose a budget that cuts their funding. The Executive can threaten to veto a budget unless NSA funding is reduced. The Supreme Court can take up any number of cases, including Wikimedia's, at any time.

I'm glad that we were able to exchange ideas, but the decision is ultimately up to the political process. We'll see how it turns out.

1) I see nothing in the constitution that requires all court business to be done in public. The sixth grants a person the right to a public trial. As far as I know the secret court has never held trials, they have only granted warrants and other bits of due process that are not required to be public.

2) Seems to be a clear violation of the sixth amendment to me.

3) You seem to be a little to black and white to me. It is possible to think that they have done the wrong thing in some cases and need to be brought back in to line but not think that we need to completely destroy the government's ability to function.