10 ms·

Clearly unconstitutional according to whom? It is valid to criticize the state secrets defense which keeps the NSA out of court – it's not valid to unilaterall

Clearly unconstitutional according to whom? It is valid to criticize the state secrets defense which keeps the NSA out of court – it's not valid to unilaterally decide what is and is not clearly unconstitutional.

jqm 11y ago
If it were all a matter of interpretation we wouldn't need an actual written constitution. If it were all up to judges the constitution wouldn't be on display and would be written in Latin or somesuch. But the constitution is public, readable and fairly plain. Now maybe the constitution is outdated. Maybe it should be changed. I don't know that. But from what the constitution reads at this point a number of these measures are manifestly unconstitutional, and it doesn't take a mosque full of Koranic scholars to ascertain that.
- eropple 11y ago
  > If it were all a matter of interpretation we wouldn't need an actual written constitution. This is false, given that there is no settled jurisprudence until interpretation happens. If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality (and this is important, as the court can functionally ignore provisions of the constitution under accepted judicial doctrine; being lashed to two-hundred-year-old thinking is not an inherent good and so plenty of escape hatches have been created over time). > But from what the constitution reads at this point a number of these measures are manifestly unconstitutional You speak imprecisely. You think (and maybe I do, too) that those measures are unconstitutional. Until they are ruled unconstitutional by a court (and the decision upheld on appeal, ruled on by the Supreme Court, etc. etc.), the most you can realistically say is that something might be unconstitutional. That's how checks and balances work--only the judiciary can say one way or the other, and that's by design.
  - gdwatson 11y ago
    What you have described is the sort of government we have, but it's not one characterized by the rule of law -- or at least not characterized so thoroughly as you imply. If law can be retconned, then we are not ruled by law at all; we are ruled by the ones doing the retconning.
    - ethanbond 11y ago
      Law can be retconned. That's what a court decision is. Convictions or exonerations under a court decision cannot be retconned (except by pardon). Yes, we are ruled by the ones doing the retconning: that's what elections are for.
  - jqm 11y ago
    I don't disagree that legally you are correct. But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land. If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses. The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark. Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.
    - gnaritas 11y ago
      It is a purposely vague document outlining the basic form of government leaving out all important detail and deferring that to said government and courts; it is by design intended to be interpreted by qualified individuals. The notion that it's some clear simple document anyone can read and properly understand is simply contrary to history and contrary to how law operates even back then. It was never the supreme law of the land so much as the supreme framework of the law to be later implemented by the land. > If it were all a matter of interpretation we wouldn't need an actual written constitution. That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.
acdha 11y ago
You're correct that it's ultimate up to judges to interpret the law but in this case it's really hard to see the full range of NSA activities surviving a 4th amendment challenge. The recent ruling shows how that's likely to go unless they're allowed to play the national security excuse: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-158 https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0... There's a simple rule I use for this: are they trying to prevent a court from discussing the mechanism? You never see e.g. the FBI trying to argue that it'll endanger national security to acknowledge that they have the technical capacity to wiretap phones because that's clearly legal as long as they have a warrant. They might try to keep specific instances sealed (e.g. mob cases where retaliation is likely) but the capability and process is not secret. As with the NSA, however, that changes once they exceed their legal authority and you see that when they do things like drop charges against known criminals rather than discuss how they used a Stingray to intercept cell-phone traffic. There's no reason to do that unless you know that the system isn't designed to follow the legal rules and thus would never survive a real court.
fineman 11y ago
Actually, unilaterally deciding what the constitution means is actually how it works. You don't vote to see if you feel it's unfair - you feel it's fair/unfair and so you vote to express that. The constitution isn't a promise we-the-people made to government, it's how we-the-people define government. Now it's okay that the NSA employees had different opinions, but what's not okay is that when called on their actions they used their interpretation of the constitution not just as a defense, but as a reason to continue. As if we owe the government its rights instead of the other way around. Clearly unconstitutional according to anyone who cares about the will of the people they serve as opposed to the letter of the law.

jqm 11y ago

If it were all a matter of interpretation we wouldn't need an actual written constitution. If it were all up to judges the constitution wouldn't be on display and would be written in Latin or somesuch. But the constitution is public, readable and fairly plain. Now maybe the constitution is outdated. Maybe it should be changed. I don't know that. But from what the constitution reads at this point a number of these measures are manifestly unconstitutional, and it doesn't take a mosque full of Koranic scholars to ascertain that.

eropple 11y ago
> If it were all a matter of interpretation we wouldn't need an actual written constitution. This is false, given that there is no settled jurisprudence until interpretation happens. If the Constitution said "there may be no dog-walking on Thursday", the constitutionality of dog-walking on Thursday would rest entirely upon the decisions of the judiciary with regards to its constitutionality (and this is important, as the court can functionally ignore provisions of the constitution under accepted judicial doctrine; being lashed to two-hundred-year-old thinking is not an inherent good and so plenty of escape hatches have been created over time). > But from what the constitution reads at this point a number of these measures are manifestly unconstitutional You speak imprecisely. You think (and maybe I do, too) that those measures are unconstitutional. Until they are ruled unconstitutional by a court (and the decision upheld on appeal, ruled on by the Supreme Court, etc. etc.), the most you can realistically say is that something might be unconstitutional. That's how checks and balances work--only the judiciary can say one way or the other, and that's by design.
- gdwatson 11y ago
  What you have described is the sort of government we have, but it's not one characterized by the rule of law -- or at least not characterized so thoroughly as you imply. If law can be retconned, then we are not ruled by law at all; we are ruled by the ones doing the retconning.
  - ethanbond 11y ago
    Law can be retconned. That's what a court decision is. Convictions or exonerations under a court decision cannot be retconned (except by pardon). Yes, we are ruled by the ones doing the retconning: that's what elections are for.
- jqm 11y ago
  I don't disagree that legally you are correct. But I think you might be missing my point. The constitution is on display in the nations capital. Copies hang on the walls of courtrooms around the country. It is taught to school children. It is (in theory) the supreme law of the land. If it were meant strictly for closed door interpretation by qualified individuals I doubt this would be the case. It would be like the bible during the dark ages. Only highly trained and qualified priests would be able to correctly understand it and pass their deciphering on to the masses. The point is that we live in a democracy. We are entitled to read the agreement we are supposed to be living under and to ascertain that it is (or isn't) being followed. In theory, (if anyone gave a shit), we can then elect people who will appoint judges who actually follow the document rather than weaseling around it for who knows what purpose while keeping the masses in the dark. Now, maybe the system is in need of overhaul for new times. But that is how it is supposed to work. Don't _ever_ feel you aren't qualified to ascertain an injustice or an infraction of the rules. And please don't suggest others don't have this right either. Down that path lies darkness.
  - gnaritas 11y ago
    It is a purposely vague document outlining the basic form of government leaving out all important detail and deferring that to said government and courts; it is by design intended to be interpreted by qualified individuals. The notion that it's some clear simple document anyone can read and properly understand is simply contrary to history and contrary to how law operates even back then. It was never the supreme law of the land so much as the supreme framework of the law to be later implemented by the land. > If it were all a matter of interpretation we wouldn't need an actual written constitution. That sentence quite literally makes no sense; all writing is a matter of interpretation, writing something down doesn't remove interpretation without great effort; in fact that's what legalese is, an attempt to remove all possible interpretation (which still fails continually; thus judges) and the constitution is not written in that manner because it's a general outline, not an attempt at really creating practical law.

acdha 11y ago

You're correct that it's ultimate up to judges to interpret the law but in this case it's really hard to see the full range of NSA activities surviving a 4th amendment challenge. The recent ruling shows how that's likely to go unless they're allowed to play the national security excuse: https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0851-158 https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0... There's a simple rule I use for this: are they trying to prevent a court from discussing the mechanism? You never see e.g. the FBI trying to argue that it'll endanger national security to acknowledge that they have the technical capacity to wiretap phones because that's clearly legal as long as they have a warrant. They might try to keep specific instances sealed (e.g. mob cases where retaliation is likely) but the capability and process is not secret. As with the NSA, however, that changes once they exceed their legal authority and you see that when they do things like drop charges against known criminals rather than discuss how they used a Stingray to intercept cell-phone traffic. There's no reason to do that unless you know that the system isn't designed to follow the legal rules and thus would never survive a real court.

fineman 11y ago

Actually, unilaterally deciding what the constitution means is actually how it works. You don't vote to see if you feel it's unfair - you feel it's fair/unfair and so you vote to express that. The constitution isn't a promise we-the-people made to government, it's how we-the-people define government. Now it's okay that the NSA employees had different opinions, but what's not okay is that when called on their actions they used their interpretation of the constitution not just as a defense, but as a reason to continue. As if we owe the government its rights instead of the other way around. Clearly unconstitutional according to anyone who cares about the will of the people they serve as opposed to the letter of the law.