Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

https://www.eff.org/document/doj-status-report-re-releasing-fisa-court-opinion

by sinak • 13 years ago

227 142 13 years ago

eff.org

Moral_• 13 years ago

Can anyone turn this lawyer speak into something the layman tech person can understand, please?

voidlogic• 13 years ago

Yes please, what are the implications of this release?

gyepi2• 13 years ago

Hard to tell since the details have been kept secret, but the FOIA request is for any order or opinion of the court on whether any 702 minimization was done unreasonably or whether any any 702 authorities have been used to circumvent the "spirit of the" law, and also for any briefings supplied to congress.

Since we now know that there is at least one such opinion, this will at least shine some sunlight on it so we can see the extent of the "circumventions" and how strongly the court dealt with it. If anything, it may show how firmly the court pursues its oversight responsibilities.

DannyBee• 13 years ago

They will release a redacted version of the opinion in question, and a redacted version of exactly one paragraph from a classified whitepaper given to congress on it. In both cases, how redacted they will be is up in the air.

They requested an extension until August 21st to do this (original deadline was August 12th). The EFF "reluctantly did not oppose this"

jlgreco2• 13 years ago

They requested an extension until August 21st to do this (original deadline was August 12th).

I don't get it; how long could it possibly take to redact such documents? Is there somebody toiling 8 hours a day for 7 or 8 more days, scrambling to get this done in time? Or are they lazily just sticking it on the backburner of some intern?

fragsworth• 13 years ago

It's really unfortunate that secret courts aren't unconstitutional. You would think that one should have been obvious.

philsalesses• 13 years ago

It's not difficult language and I think what you really want to ask, without asking, is does anyone have a TLDR? At least that's what I'm asking because the PDF on my iPhone is on the fritz.

darkchasma• 13 years ago

You feel it's not difficult language to non-lawyers, but you physically can't read the text because your phone is broken? How would you know?

j_baker2• 13 years ago

"Ok. You win. Give us a few more days to redact the hell out of the opinion, and then we'll give it over to you."

mullingitover2• 13 years ago

It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? It seems like at that point it should deny every single request going forward until the illegal activities have stopped.

Is there a process for impeaching the FISA judges for malfeasance?

ihsw• 13 years ago

It's a matter of official policy to include legal loopholes that enable the Federal government to assert its power rather than comply with the law.

001sky• 13 years ago

This would be an interesting fodder for case studies... Any empirical examples for benchmarking?

ionforce• 13 years ago

I'm curious what you mean when you say "official policy". Did you mean, that's how the machine works, people will always find/create loopholes.

Or did you mean there is a technical provision somewhere that somehow mandates the existence of such loopholes?

inopinatus• 13 years ago

"Bernard, the Official Secrets Act is not to protect secrets, it is to protect officials."[1]

[1] Sir Humphrey Appleby, Jobs for the Boys (e/o "Yes Minister"), Jay A and Lynn J, BBC; first broadcast April 7, 1980.

j_baker2• 13 years ago

Any "civil officer of the United States" can be impeached. In fact, judges are the majority of officials that have been successfully impeached. Calls for impeachment are more often frivolous than they are serious though.

How do you know the court has continued to rubber-stamp the activities it considers unconstitutional?

chinpokomon7• 13 years ago

How do you know they haven't?

anigbrowl13• 13 years ago

If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants?

First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis - not least because their decisions might be classified now, but may well be declassified in the future, and their reasoning will be held up to scrutiny.

More importantly, just because an agency is found to have operated illegally does not mean that everything the agency does must then be rejected. It's easy to find examples of police officers or even entire departments being corrupt, but it does not follow that everyone who is arrested by the police is necessarily innocent, or that all arrests are flawed.

Arguments of the kind you make above involve a fallacy of composition, one which seems to appear ever more frequently on HN. http://en.wikipedia.org/wiki/Fallacy_of_composition

impendia2• 13 years ago

I disagree that this argument involves a fallacy. The following statements are not equivalent:

1. It seems like at that point it should deny every single request going forward until the illegal activities have stopped.

2. Every request going forward is illegitimate.

(2) is false, but I believe that (1) is plausible, especially if there are any difficulties for FISA to determine whether any particular NSA request is legitimate or not.

madaxe3• 13 years ago

They don't rubber stamp warrants because there are no warrants. See the XKEYSCORE presentation. They just need a loose reason that the person may or may not be affiliated with a foreign entity by up to five degrees of separation.

windexh8er2• 13 years ago

I'm not sure how anyone can has enough reasonable information to make a case that FISA doesn't rubber stamp cases. It seems to me it works that of the way large organizations navigate political nuances internally; people who don't run the technology and platforms make the decisions as it pertains to influence that, is often, good for self-preservation and fiscal motivation - the operators implement the systems as they see fit and generally don't have "real" oversight from the approvers. Even if they do - generally they don't have enough understanding to enforce it if they wanted to. It's just a matter of mincing words at that point.

I think until we see clear evidence from examples the number of cases denied are an obvious minority. Based on what we know from public disclosure, there is abuse. That to me states there is a good indication rubber-stamping has in fact occurred and should be reviewed. But, since it can't be...

The trustworthiness of the system is not there anymore and it has degraded to a point where most informed citizens would err on the side of saying there is something wrong. There are some grave issues that need to be addressed in short order or our government is going to push any data related industry the way of safer harbors.

betterunix3• 13 years ago

"First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis"

The FISC is called a rubber stamp because they almost never reject requests for a warrant. The government can be almost certain that no matter how outrageous its request is, FISC will say "yes." That they may be evaluating requests on a case-by-case basis is irrelevant if they always come to the same conclusion.

tzs• 13 years ago

One FISA judge ruled that one particular program (or perhaps part of one particular program) was unconstitutional. I don't believe we know any of the following:

1. Whether or not that is binding precedent on other FISA judges.

2. Whether or not that program (or that aspect of that program) continued after the ruling.

3. If it did continue, whether or not it was modified to address the concerns of that one judge.

dragonwriter12• 13 years ago

If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants?

The issue is releasing an order in which they found some collection that the government engaged in under section 702 minimization procedures violated the Fourth Amendment, not that the program as a whole did so. Presumably, the situations in which it found that would not be the same ones for which it approved warrants.

e3pi• 13 years ago

It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling.

Unable to be aware of the current secret case law history, addressing the FISA secret court, is it intellectually dishonest to still say, `Your Honor?'"

makerops• 13 years ago

Buy stock in whatever company the DoJ buys their black markers from.

famousactress• 13 years ago

If momentum builds behind an internet blackout a-la the SOPA protest, that'd be a clever way to do it.. write some js/css that black-marker-redacts the page contents.

samstave2• 13 years ago

Reddit already has that for spoiler alerts.

asperous• 13 years ago

Best I can do for hacker news. You'll have to copy it into your browser's javascript console, or prepend javascript: and save it as a bookmarklet.

Array.prototype.slice.call(document.getElementsByTagName('font')).forEach(function(i){i.innerHTML = i.innerHTML.split(' ').reduce(function(acc, cv, i, a) {if (i % 5 == 0) return acc + '<span style="background-color: black;">' + cv + ' </span>'; else return acc + cv + ' '; }, '');})

jivatmanx4• 13 years ago

At a point in our nation's early history, we decided to trust Constitutional interpretation to the Supreme Court. There were cons to that decision - the Constitution is our social contract and thus it's interpretation is ultimately up to the people - but on the whole I think it was a good one.

But, if for whatever reason, this Judicial review cannot occur - whether that be willful avoidance by the DEA for "Parallel Construction", or various activities related to the FISA Star Chamber - that's a problem that needs to be solved, lest the constitution lack any enforcement ability whatsoever.

samstave2• 13 years ago

Well, when the NSA is spying on and potentially blackmailing the Supreme Court itself, then it really doesn't matter.

Watch this vid with Siebel Edmund's where she says that the NSA has basically just extended to a massive degree the level of blackmail that intelligence has used since the days of Hoover.

The 4th branch.

https://www.youtube.com/watch?v=Pc3esnkqM7E&feature=share

SimHacker• 13 years ago

The correct assumption is the more some politician supports the NSA, the dirtier stuff they have to blackmail them with. I wonder what Pelosi's secret is?

rustynails• 13 years ago

Watch this video at around 22 minutes, http://topdocumentaryfilms.com/kill-the-messenger/

Dear Mr Obama - please explain why we are REPEATING the same thing. Shame on you if you fool us once, shame on us if you fool us again...

I was shocked when I watched this video. It's all happening again...

FedRegister• 13 years ago

The people are trusted with the interpretation of Constitutionality and government legitimacy through Article I, Section 2, Paragraph 1, Article I, Section 3, Paragraph I (as amended), Article III, Section 2, Paragraph 3 of the US Constitution, Article VI of the Constitution, The First, Second, Fifth, Sixth, and Seventh Amendments to the Constitution.

CamperBob2• 13 years ago

Exactly. The doctrine of judicial review wasn't even part of the original plan.

cortesoft• 13 years ago

The idea that the interpretation of the Constitution is up to the people sounds like a good idea; however, how exactly would that work in practice?

We obviously can't just let each individual interpret it how they see fit, or it becomes effectively meaningless. It would be equally impossible for each Constitutional question to be 'voted' on by the people.

Is there a way I am missing? It seems the courts are the only logical choice to interpret the Constitution.

mpyne3• 13 years ago

I think courts are the logical choice but I don't think it's ideal that the only way you can get Constitutional questions decided is by getting screwed by an Unconstitutional decision already made somewhere and then getting it overturned, or by having the government try to Unconstitutionally beat you over the head and winning your case.

anigbrowl13• 13 years ago

The other (albeit largely theoretical) possibility is a Constitutional Convention.

jivatmanx4• 13 years ago

Congress must take seriously the idea that upholding the Constitution is a central duty, and that the existence of the Supreme Court does not in any way eliminate that duty.

dragonwriter12• 13 years ago

The idea that the interpretation of the Constitution is up to the people sounds like a good idea; however, how exactly would that work in practice?

The people individually would decide what the Constitution means, and they would -- having made those decisions -- individually and collectively act to hold incumbent officials and candidates accountable to those interpretations through voting, public advocacy, protests, and, in extreme cases, direct action.

We obviously can't just let each individual interpret it how they see fit

Not only can we, but we really have no other choice; whether we like it or not, each individual will do that, even if "how they see fit" is to delegate the interpretation to some individual authority, or the collective wisdom of the rest of the population.

dragonwriter12• 13 years ago

At a point in our nation's early history, we decided to trust Constitutional interpretation to the Supreme Court.

I don't think we did.

We gave the federal judiciary responsibility, within the government, for resolving cases and controversies arising under the federal Constitution and laws, including, inter alia, questions cases and controversies involving disputes over whether a government act was consistent with the Constitution (we did that, incidentally, at the point when we ratified the Constitution.)

However, that in no way makes the Supreme Court exclusively responsible for interpreting the Constitution, the President is also given a duty to preserve the Constitution and see that the laws are faithfully executed, and that duty requires interpeting the Constitution even when there is no legally cognizable case or controversy for the judiciary to decide.

And Congress, of course, has both powers and obligations under the Constitution which require it to interpret the Constitution -- again, even when there is no legally cognizable case or controversy for the judiciary to decide.

And, ultimately, the whole system relies on the people interpreting the Constitution and holding those in government office accountable to it, whether there is a legally cognizable case or controversy for the judiciary to decide, and whether or not the judiciary is willing to do its duty properly when such a case or controversy exists.

awicklander• 13 years ago

Let me guess, this will be used as a way to legitimize the FISA court. Nothing to see here - move on. See, your rights are being protected.

mpyne3• 13 years ago

The FISA court that's been around since 1978? There's entire major commands of the military that have been created and then killed again in the time FISC has existed, seems pretty legit to me.

mrt0mat0• 13 years ago

I think we're going to get a bit of data, and say, good job guys, we did it! ... and nothing changes.

Sauer_Kraut5• 13 years ago

As I referenced in another thread, Obama himself voted for the FISA amendment[1].

How clearer must it get that people working for companies like AT&T and Booz Allen are complicit in receiving monetary remuneration for collaborating with various arms of the government in circumventing/intel laundering/routing around the laws and regulations said arms of the government were to be checking each other against?

Must there need be more details of local law enforcement letting Steven Seagal maraud around in federally sourced tanks? Booz Allen assisting local law enforcement in copyright prosecutions? Drone managing SAIC running private monitoring centers with federal fusion center support?

AT&T workers NOT going along with what management puts forward, revealing secret closets instead. Or services shutting down to prevent such hardware from ever being installed?

The US government, all branches, are corrupt by being complicit in each others deeds. Together along with employees within corporations that collaborate with the US government, law is being undone or outright ignored.

Refuse, resist.

[1] H.R. 6304 (Foreign Intelligence Surveillance Act of 1978 ) Obama (D-IL), Yea: http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...

droopybuns4• 13 years ago

I think you should eat brussel sprouts. My opinion entitles me to publicly deride you for failing to meet your moral imperatives. To do anything else makes you complicit in the great evil intrinsic to non-brussel sprout consumption.

I am a one dimensional human being who can easily assess the complexities in your life, so we're cool with this broad statement, right? There's clearly no other reasons you could be avoiding brussel sprout consumption.

Sauer_Kraut5• 13 years ago

What moral imperatives were implied?

mikegagnon• 13 years ago

I don't think the world is so black and white.

If you pay taxes to the federal government are you complicit with all of the government's actions? Well sure, but what other option do you have? You could not pay taxes and go to jail, or you could move somewhere else where there isn't an imperfect government--- say Antarctica.

Similarly, what are you going to do if you decide not to work for some "complicit" organization? Move to Silicon Valley and work at a startup? Is that any better? Is there any company that is morally and ethically perfect?

Governments, industries, populations, etc. are all part of an inter-related system called The World. If you think this system is imperfect and should be improved, then exiting the system won't solve anything. Rather, you can work within the system and do what you can to make it better.

Sauer_Kraut5• 13 years ago

I never said anything was black and white, just that a very large amount of people have become complicit in what they acknowledge as wrong-doings.

As to working within the system, attempting to halt or mitigate what you view as malfeasance is indeed not complying. Merely suggesting though, that people are working within doesn't do much in the face of the number of those working for without care or question.

Yes people have to make the choice of being complicit or face going to jail in some cases. Most just need to stop defending their profiting from the murder/kidnapping/torture/rendition/detention/prosecution of others. Providing infrastructural support like telecommunications is indeed an enabler for industries like drone warfare.

It's called "The World" as you put it.

kyro• 13 years ago

Is there some sort of bat signal we can use to get grellas to this thread?

mark_l_watson• 13 years ago

I donated money to Obama's 2008 campaign and voted for him twice. I am very disappointed with him.

Now, my honest opinion is that at worst he sometimes flat out lies, or at least cleverly tries to confuse people. He says that he had an orderly plan for reviewing privacy issues, all the while, I think that his administration has consistently been trying to keep things hushed up.

JPKab• 13 years ago

Mark, I agree. I think that the situation is this: politicians, in the short term, view the security side of the security vs. freedom debate as the best option. If you can stop a terrorist attack from occurring by infringing freedom, then do it. An attack will make you look much worse than a few intelligent people being upset about privacy invasion. That, sadly, is the unfortunate incentive happening here.

I think this short term benefit of always choosing security over freedom has always been too tempting for politicans and leaders not to do it. The founders recognized this, which is why the 4th Amendment, along with the rest of the Constitution, is supposed to be enforced by the separate branch of government that is the Judicial Branch.

But you know what? The Judicial Branch hasn't kept up with the Executive at all. The Executive Branch has huge agencies within it. The Judicial Branch is just a few judges and their staff.

Why isn't there a Judicial Branch agency that safeguards the Constitution from the other two branches?? Why couldn't this agency have a bunch of people with Top Secret clearances working for it who answer to nobody but the Supreme Court and can be contacted by Edward Snowden type whistle-blowers whenever someone feels the folks they work for are undermining the Constitution?

We need a Constitution Protection Agency that is part of the Judicial Branch. Their entire job should be going after the bastards in the other two branches who go against the constitution.

jivatmanx4• 13 years ago

Many countries have more powerful and interventionist Supreme Courts. Notable, Germany[1]

[1]http://en.wikipedia.org/wiki/Federal_Constitutional_Court_of...

anigbrowl13• 13 years ago

The founders recognized this, which is why the 4th Amendment, along with the rest of the Constitution, is supposed to be enforced by the separate branch of government that is the Judicial Branch.

You're saying the police power is the province of the Judicial Branch?! This is a...unique interpretation. The Constitution divides the power of the government in legislative (making law), executive (promulgating and enforcing law), and judicial (evaluation of the law). In common law jurisdictions the judicial branch does not have any kind of police power, and to the best of my knowledge never has had.

I am perplexed by the number of HNers that seem to think we live in a civil law jurisdiction. http://en.wikipedia.org/wiki/Civil_law_(legal_system)

dragonwriter12• 13 years ago

Why isn't there a Judicial Branch agency that safeguards the Constitution from the other two branches??

Because there is no authority for such an agency in Article III, and because the type of ombudsman agency you describe would be undertaking investigations of a sort that are executive, rather than judicial, so that even if Congress attempted to create such an agency, it would be (were it Constitutional at all) an Article II agency subject to the President even if Congress gave the Judiciary the power to appoint its officers.

jtc331• 13 years ago

> "We need a Constitution Protection Agency that is part of the Judicial Branch."

I don't believe that a government can /ever/ effectively regulate itself--not matter how many/how strong the agencies you create.

The only effective remedy is a truly informed citizenry and civil disobedience.

Clanan• 13 years ago

The Executive Branch enforces, the Judicial judges. The Constitution says it quite explicitly in Articles 2 and 3.

You give far too much credit to politicians. They don't think of this as security vs. freedom, they think of it as power. Power for them, power for their party, power for their people. It's a simple explanation, but it fits. Heck, research has even shown that politicians will decide based on what keeps them in office, not what they "should" do [1]. Jefferson said it best: "All men having power ought to be mistrusted. Perhaps it is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad."

[1] Congress: The Electoral Connection by David R. Mayhew

dictum• 13 years ago

What saddens me is that while in the 2012 elections it seems most Obama voters were effectively choosing the lesser of two evils, in 2008 they were voting for Obama. They believed in what he was supposed to represent.

In retrospect, maybe they were voting against Bush. In the next election maybe a majority will vote against Obama, and the game will keep going.

bitwize3• 13 years ago

What saddens me is that while in the 2012 elections it seems most Obama voters were effectively choosing the lesser of two evils, in 2008 they were voting for Obama. They believed in what he was supposed to represent.

They wanted to believe. Even then Obama gave off considerable whiffs of being a relative political neophyte who felt entitled -- or even destined -- to power, and was given an easy path into the White House by an all-too-eager Democratic apparatus. Still, I was glad he won in 2008 because of his platform; he eventually reneged on so many of his campaign promises that I could not, in good conscience, vote for him in 2012.

joshfraser• 13 years ago

We may never have a true democratic election in the US again. As long as the NSA dragnet exists, we'll never know what privately collected information was used to humiliate political opponents or cause them to withdraw from the race rather than face public embarrassment.

saraid2162• 13 years ago

McCain wasn't exactly putting up a fight in 2008. The main reason, as far as I could tell, that Obama might lose was because he looked black.

jseliger2• 13 years ago

I wrote this a couple days ago in response to another HN comment but it's relevant here too; the first paragraph is the one I responded to:

The question is then; in a two party system where both offer the blue pill, who the hell do you vote for?

Greens or libertarians, which I have been doing for a long time. Real change starts at the ballot box.

bitwize3• 13 years ago

Barring a constitutional amendment that implements a multiparty, proportional-representation parliament, your choices in Murka are either Kang or Kodos.

dragonwriter12• 13 years ago

Real change starts at the ballot box.

No, real change starts with working to build a mass constituency that believes that real change is necessary, and agrees on the general direction of change.

If you want it to work, change through the ballot box is fairly late in that process.

jczhang• 13 years ago

I think humans rationalize quite a bit to please both sides. Spend enough time with people who are smart and promote issue X strongly, and you will soon bend whatever 'principle' you had. The idea of balance is very tempting.

madaxe3• 13 years ago

He explicitly denied warrantless surveillance in his press conference a few hours ago - a few hours after the guardian published a piece on exactly how they go about it.

Also telling were the pregnant pauses when posed questions about the NSA, the backtracking on and modification of sentences that he realised were about to be dangerous, and the fact that he quipped about journalists reading body language when he met Putin - which rather tells us what was on his mind.

betterunix3• 13 years ago

"I donated money to Obama's 2008 campaign and voted for him twice."

...after the first four years, why would you vote for him again? It became clear almost from the first day of his presidency that his campaign promises were hollow.

Stop letting your fear that a Republican might win get the better of you. Vote third party until the Democrats get their act together.

chinpokomon7• 13 years ago

I do that when I fear the Democrats might win too. Honestly, I wish more people would realize there are other options. We'd be much better if we had a greater range of choices. Unfortunately the two parties at the top have made it very hard for third party candidates.

specialist3• 13 years ago

With winner takes all politics, there is no third party. Duverger's Law: to get 51% of the vote, everyone tries to form the smallest winning coalition.

http://en.wikipedia.org/wiki/Duverger's_law

If you want to build a viable third party, start with local elections, build your farm team. It takes decades to be viable. Then at some point, one of the dominate coalitions will pivot and subsume the new platform.

It's happened many times in the USA.

specialist3• 13 years ago

I am very disappointed with him.

Yup. My disappointment is tempered with the knowledge that we (The People) aren't doing our jobs very well either.

"Power concedes nothing without a demand. It never did and it never will."

-- Frederick Douglass

"I agree with you, I want to do it, now make me do it"

-- FDR

Politicians only respond to pressure. Period. From a game theoretic standpoint, it makes perfect sense: Why take a position today which could come back and bite them tomorrow? Better to take the safe route, the status quo.

I have modest experience with this, mostly disappointment. The small successes we had happened when we packed hearings with bodies.

If you can mobilize and won't go away, politicians will do anything to make you go away. It doesn't matter who's in the chair: Democrat, Republican, fruitcake, saint, elected, appointed, whatever. You make a stink, you get your way.

Sometimes you have to make a very big stink. And the personal costs are often very high.

javajosh• 13 years ago

This is actually really, really great news, and I'm really impressed that we're changing direction so quickly. This is a huge bureaucracy, and softening even this much in a few short months is an amazing thing. I see this as a very hopeful sign that we'll get back on track - just more slowly than anyone (including myself) would like it to go. But it's a nation of almost 400 million people and crazy complex body of law to deal with: nothing changes on a dime.

MrHater• 13 years ago

Time to do the Obama Shake: http://i.minus.com/iwOSyasN8lziO.gif

Obama to release FISA court opinion that ruled NSA surveillance unconstitutional

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