Reading this article it suddenly became clear: FISA is an Executive Branch agency that defends executive actions, much like the DoJ. In other words, it is the DoJ. When it (at least) comes to the 4th Amendment, the executive branch has manipulated Section 215 of the Patriot managed to totally unchain itself from the Constitution and do whatever it wants, in secret, from both the public and the other branches of government.
The magnitude of this is stunning. Historically, the executive has unchained itself for brief periods for specific issues. I do not know of any attempt to unchain itself in perpetuity, and in secret.
The fact that anyone finds it the least defensible is even more stunning. I mean, even if you are for mass surveillance (and there are many who legitimately feel that way) surely you must be concerned that it was done without your knowledge or consent.
There are two paths to solving this problem, both of which result in striking down Section 215 of the Patriot Act: a court challenge (which the EFF is spear-heading) and an act of Congress (which is very unlikely given the lack of public awareness and uproar).
Personally, I would like to see an additional censure on Obama and all other executive, legislative, and judicia officials who abrogated their duty to protect the Constitution of the United States of America. It needs to be our harshest censure, to send a message to future administrations that secret coups will not be tolerated.
You are correct. This is quite stunning. My reaction when thinking about what we've created is "awestruck" -- and I mean that in the initial meaning of the word. It's an amazingly giant cluster fuck.
I don't see a way out, and I believe it's only a matter of time, perhaps only a few years, before the executive starts using this power for political gain.
And then we are well and truly screwed.
ADD: One counter-argument might be that the president can't use this for direct political gain because of all the other laws and structures we've put in place to prevent direct meddling. Believing that is true, which I don't, we're left with an even worse calamity: mid-level managers who will effectively have the power of kings while making 100K per year. As we've seen in many other mid-level management scandals, including the IRS, for the guy getting screwed it doesn't make much difference whether it's the president or some nameless bureaucrat being paid off by the mob who's doing it. Hurts just the same. Still just as bad. In fact, the president directly abusing this power is probably the best of all possible bad outcomes. Gives us one person to blame.
A matter of time? It's already happened. See how documents submitted to the IRS magically appear in the hands of political opponents. See how political opposition was thoroughly disrupted (tea party groups' tax-exempt purgatory + all of the raids and interrogation which followed) while political friends sailed through immediately.
Over the past decade, the American justice system has become fundamentally - and in my opinion, irreversibly - broken.
There has always been corruption in politics and justice, and that has been somewhat kept in check by the Constitution. But since 9/11, the corruption has become qualitatively different, because like you say, the government is no longer chained to the Constitution and can either interpret it liberally, or completely refuse to follow it using secret courts and gag orders and what have you.
It's not just the magnitude of this problem that is stunning, but also the scope and the depth. For example, you have surely noted that the number of people who care about being subject to perpetual surveillance is alarmingly small. But from their perspective, when someone is having to work longer and longer hours just to keep their jobs, and they have to constantly worry about missing mortgage payments and losing their homes, and on top of that deal with various health problems (due to rising obesity rates, among other things), and being able to send their kids to college, and whether they will be shot by some cop while reading a book... it's actually no wonder that they simply don't have the mental bandwidth to care about some nebulous government entity listening their phone calls and reading their emails.
I guess what I'm trying to say is that the current situation in America is the confluence of a great number of seemingly unrelated threads. And the reason we won't be able to solve the problems this time around is that the complexity of this ball of yarn is simply too great for any one individual to fully comprehend, much even solve.
The US actually tried to impeach a president for lying about a sexual encounter with a White House intern yet does not seem to care much about a president who despite teaching Constitutional Law (G.W. Bush was not even a lawyer) does not appear to know his primary responsibility as president - to protect and defend the Constitution - and proceeds to violate the sworn oath of allegiance he took (twice) after being elected and reelected.
Do we really care more about presidents who lie about sex scandals than presidents who violate their oath? Maybe we should change the oath to state "I do solemnly swear that I will not have sexual encounters with any White House staff." Under that oath, JFK would have been in clear violation.
The Constitution is far more important than any single president, administration or election.
I guess there are still some folks who might still believe that there's really been no obvious violations of the Constitution in the course of these surveillance programs. But then why did so many senior lawyers at DOJ, even the Attorney General himself, oppose and threaten to resign (or resign) over these programs when they learned about them years ago? How many more lawyers need to look at the facts and say, "Something is not right here," before we all agree to get to work and fix it?
Bush Jr. too was at fault for what has taken place, but it's Obama who has been fully caught out (thanks to Snowden). Why should Obama be excused for this? The issue is not personal nor political (as it may have been with Clinton... as if he was the first president ever to cheat and to lie); it is a matter of protecting the Constitution. What higher calling is there for any public servant? And while it's unfortunate the issue has come to the public light during his term, this is much more important than Mr. Obama, his presidency, his administration, or his legacy.
> The Constitution is far more important than any single president, administration or election.
Yes.
Which makes me wonder about the motives of those who pushed for a broad interpretation of section 215. As tempting as it is to think of them as power-hungry, evildoers, I actually don't think that's the case.
There is a cultural movement away from self-restraint, that was nowhere exhibited more freely and forcefully than by George W Bush. His example has been copied in public and private, showing how powerless "the public" really is when it comes to checking unethical, or even illegal behavior of the powerful.
I think we all thought Obama represented a movement back toward self-restraint as a virtue. And yet, time and again he shows himself to be even less restrained than his predecessor - a failing that is all the more terrible for being so very unexpected. The Obama administration should have actively resisted a broad interpretation of 215, and indeed lobbied Congress to amend the bill to avoid any possible loophole. That would have been restraint. Instead, the Obama administration stretched the law to it's breaking point, then did complex legal dances to give their power grab an air of legitimacy.
"By the people, of the people, and for the people" is a description, not a prescription.
Take a look around -- that movement away from self-restraint is evident everywhere, in public and in private, in business and in government. You can even see it in people's bodies, from eating too much to working out too much.
By the people: a description. If as a society we don't restrain ourselves, it is not a great leap in logic to predict that government will do the same. We are a society obsessed with loopholes & me-first attitudes and we glorify rampant consumerism and pretty people that consume rampantly. Our companies publicly claim to "do no evil" and privately do what they want.
The surprising truth should be that the government is a mirror on ourselves. If we don't like the government, we have a much more sinister problem.
It is a human condition to have endless wants. The genius of the American experiment was that the Founders understood this, and created institutional checks on the size and power of government-- after all, governments are made up of people. The problem is that these institutional checks are crumbling under the twin weight of the military industrial complex and the entitlement state.
Neither do I. I think people make honest mistakes.
Alas, under pressure, people also try to cover them up.
I forget where I read it but some insider in the intelligence community said he thought that Obama's behavior could be explained by the fact he never had such access to such secrets before (unlike the Bush family who are closely connected with the CIA) and he quickly became obsessed with his newfound power of secrecy.
The question is whether he is man enough to admit he (and those before him) made a mistake and whether "yes we can" fix it.
> The US actually tried to impeach a president for lying about a sexual encounter with a White House intern yet does not seem to care much about a president who despite teaching Constitutional Law (G.W. Bush was not even a lawyer) does not appear to know his primary responsibility as president - to protect and defend the Constitution - and proceeds to violate the sworn oath of allegiance he took (twice) after being elected and reelected.
I believe that this is actually literally true: people do care more about the former than the latter. And I think the reasoning is the same psychological flaw that leads to bikeshed[1] arguments.
The executive branch manipulating the interpretation of laws to undermine the checks and balances of the Constitution is too huge, complex, and nebulous of an issue for the average voter to understand or know how to feel on. So many of us just sort of assume that other, smarter people will figure out how to fix the problem for us.
Meanwhile, we can all relate to and easily come to a moral judgement when it comes to infidelity in a marriage and lying about it in court. We can imagine ourselves in that situation and have a clear picture of what the right thing to do is.
With this whole privacy issue, it isn't even clear who the actors are in the story. We all know something bad is going down, but who is doing bad things and why, who is doing good to combat it, and what as citizens should we do to improve the situation? It's huge and overwhelming.
What's this "we" stuff about? The media cares more about it and that's all that matters. Control the distribution of information and you control the populous.
"Now in his second term, President Obama insists that his counterterrorism policies differ markedly from Bush's. However, there are far more similarities than differences with regards to: non-battlefield targeted killings (an estimated 50 under Bush, and 387 under Obama); indefinite detention of suspected terrorists (approved by both through executive orders); broad surveillance authorities (as former NSA and CIA director Michael Hayden admitted on Sunday, 'NSA is actually empowered to do more things than I was empowered to do under President Bush's special authorization')"
> Personally, I would like to see an additional censure on Obama and all other executive, legislative, and judicial officials who abrogated their duty to protect the Constitution of the United States of America. It needs to be our harshest censure, to send a message to future administrations that secret coups will not be tolerated.
But, who will keep us safe!
If you want to see reform, you've got to start winning the hearts and minds of the American public and convince them the surveillance state is a bad thing. I think that is going to be a challenge. I know a lot of people who still say "I've got nothing to hide", etc. Truth is it takes very little to scare them into thinking the government needs to do everything in its power to protect them. Case in point, the Boston bombing, which was horrible (I'm not discounting it). But, have we seen any increase in regulatory pressure on fertilizer plants? I'm far more "worried" (=rationally aware of the risk) about the anhydrous ammonia plant on the other side of town.
There are approximately 10,000 federal statutes, many of which never get enforced because they are either too difficult or so completely asinine that nobody cares (http://tjshome.com/dumblaws.php). Just wait until the infrastructure gets to the point where it allows total information awareness on the general population and everything gets enforced. That is a bureaucrat's wet dream.
> winning the hearts and minds of the American public and convince them the surveillance state is a bad thing.
Actually, no! While I agree it is a terrible thing, the even worse thing is that the surveillance state was created without the knowledge or consent of the public. That is, as bad as the first-order action was, the second-order precedent is far, far worse.
I don't understand your argument. I think you might have misread mine.
I'm saying that in order to undo the surveillance state, you have to convince the general public that mass surveillance is bad. HN readers might realize it, but the average US citizen does not.
BTW, "who will keep us safe" was sarcastic. Sorry if that wasn't obvious.
I disagree with your interpretation that the Executive Branch has "totally unchain [sic] itself from the Constitution."
Congress has voted a couple times in the most recent decade to approve extensions for the FISA Amendments Act of 2008 (see footnotes). So under Congressional authority, the Executive Branch has been able to continue their activities under the FISC. I do agree, however, that there is a blindfold around the Judicial branch that prevents any introspection into the actual interpretations of law under the FISC, specifically w/r/t the 4th Amendment.
The FISA Amendments Act that passed in 2008 and was renewed late last year, needs to go, too. The Patriot Act part is more for phone calls. FISA allows them to scoop all the Internet data.
> the Foreign Intelligence Surveillance Court has for years been developing what is effectively a secret and unchallenged body of law on core Fourth Amendment issues, producing lengthy classified rulings based on the arguments of the federal government — the only party allowed in the courtroom
It is sad indeed, but perhaps every political system sooner or later becomes a tyranny and dictatorship. It may be just a matter of time. If that's true then we live in the most amazing timeline of humans' evolution, and we should all appreciate it enormously.
> > the Foreign Intelligence Surveillance Court has for years been developing what is effectively a secret and unchallenged body of law on core Fourth Amendment issues, producing lengthy classified rulings based on the arguments of the federal government — the only party allowed in the courtroom
It seems to me that we are doing a disservice to the terms 'law' and 'court' if we call a "secret and unchallenged body" of decisions 'law' and we call a place where the federal government is "the only party allowed in" a 'courtroom'
Let's not give this travesty any more legitimacy than it deserves
> It is sad indeed, but perhaps every political system sooner or later becomes a tyranny and dictatorship. It may be just a matter of time.
> It is sad indeed, but perhaps every political system sooner or later becomes a tyranny and dictatorship.
Uh, are we observing the same history here? The trend has distinctly been in the other direction. I'm less afraid of the NSA circa 2013, than Hoover's FBI from the middle of the 20th century, or McCarthy's Senate in the 1950's. The British's Parliament has governed Britain with tremendous continuity for about 325 years now, and it has on the whole only become more democratic over that time. The Soviet Union fell, East Germany fell. Brazil is ripe for democratic reform. Even China probably won't be able to stave off democracy forever at its current pace of development.
While I agree with you that there has been lots of historical movement away from tyranny, you'd be a fool to fear McCarthy's Senate of the 50's more than the intelligence apparatus of today.
According to wikipedia:
"Between 1949 and 1954, a total of 109 investigations were carried out by these and other committees of Congress."
The Hollywood blacklist at its height listed 300 people. Despite how high-profile it was, these institutions touched microscopic handfuls of people, and they were considerably more public and easy to oppose than the modern NSA.
Compare:
Modern NSA is pretty clearly keeping files on pretty much everyone. Hundreds of millions of people, conservatively.
Number of people on terrorist watch lists: Unclear, anywhere from thousands to millions.
Number of FISA warrants granted: In recent years, from a low of 1,300 (2009) to a high of 1,700 (2012). Call it 6,000 in the period 2009-2012.
Number of people killed via drone strikes: 2,000 to 3,000.
You are VASTLY more likely to impacted by the modern surveillance state than you ever were by the McCarthy investigations, and the government at least holds out the possibility that they will assassinate you without due process, which to my knowledge the McCarthy investigations never did.
I suspect that a similar scale argument holds with Hoover's FBI, though I don't know how I would prove it.
"We don’t know what we’ll find. The surveillance court may be strictly adhering to the limits of the Fourth Amendment as interpreted by the Supreme Court. Or not. And that’s the problem: This court has morphed into an odd hybrid that seems to exist outside the justice system, even as its power grows in ways that we can’t see."
Don't forget the argument from the other day, though. The Fourth Amendment specifically outlines the use of a "reasonableness" test. If it seems reasonable to the average man, it's probably okay.
Without anybody knowing what's going on, however, there is no common man to check with to see if the government is acting in a reasonable way. Therefore for all intents and purposes there are no limits, aside from precedent, which is wonderfully flexible given the right semantic nudging.
I think we need a new word. Kafkaean, because Kafkaesque to me implies "IS LIKE Kafka's nightmares" when I really want to describe it as "IS Kafka's nightmares".
It's funny because when you were in high school and you thought the books you read wouldn't ever apply to life, but now that they do, the thoughts scare the crap outta me.
The magnitude of this is stunning. Historically, the executive has unchained itself for brief periods for specific issues. I do not know of any attempt to unchain itself in perpetuity, and in secret.
The fact that anyone finds it the least defensible is even more stunning. I mean, even if you are for mass surveillance (and there are many who legitimately feel that way) surely you must be concerned that it was done without your knowledge or consent.
There are two paths to solving this problem, both of which result in striking down Section 215 of the Patriot Act: a court challenge (which the EFF is spear-heading) and an act of Congress (which is very unlikely given the lack of public awareness and uproar).
Personally, I would like to see an additional censure on Obama and all other executive, legislative, and judicia officials who abrogated their duty to protect the Constitution of the United States of America. It needs to be our harshest censure, to send a message to future administrations that secret coups will not be tolerated.