5 ms·

The alternative is requiring a warrant, which means following the Constitution. Due process doesn’t disappear because you want it to. Even if someone is suppose

The alternative is requiring a warrant, which means following the Constitution. Due process doesn’t disappear because you want it to. Even if someone is supposedly a terrorist or criminal.

twoodfin 2y ago
If you’re hoping the Supreme Court, and in particular this Supreme Court, is going to agree that the Constitution requires the executive branch get a warrant before spying on cross-border communication with a non-citizen, you’re going to be disappointed. FISA is Congress exercising the only authority it has here, which is oversight & regulation. You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.
- soraminazuki 2y ago
  It's baffling to many people how FISA is even a thing. To a layperson, the Fourth Amendment leaves no room for a rubber stamp court authorizing mass surveillance. And no one except politicians and bureaucrats are buying the argument that this is somehow targeted surveillance. Also, free nations should have higher standards than "Not a citizen? Too bad, anything goes."
  - twoodfin 2y ago
    This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free. Congress can regulate the process that must be followed, the documentation that must be made, even require judicial review at the program level to ensure it doesn’t also record traffic that is Constitutionally protected. That’s what FISA is. But it can’t ban that tapping, nor can it require the executive to get a warrant for a particular otherwise Constitutional intercept from an Article 3 court. Which part of this do you think is incorrect?
    - soraminazuki 2y ago
      Where do I even start? Let's first reiterate that even when it's technically legal to screw over non-citizens, it doesn't make it right. That's not the standard expected of a free nation. But let's ignore that for a moment and move on to the next point. Your example is still hoovering up communications from citizens who are supposed to be protected by due process of law. En masse. How does this not run afoul of the law? The problem is compounded by the fact that the internet blurs geographical borders. Wholly domestic communications can and does end up crossing borders. Also, I'd bet a large part of our communications aren't even between people. The majority of the traffic likely are sent to or from computer programs. They happen without most people even realizing it, but contains highly personal information. The simple telegraph analogy doesn't translate well to the internet. What's more, there's currently no meaningful system in place to prevent abuse. And no, a rubber stamp court authorizing dragnet surveillance isn't it.
      - twoodfin 2y ago
        OK, you want FISA to be stricter. But way up thread, someone made the point that it’s FISA itself that puts any meaningful balancing constraints at all on the Constitutional power of the executive. This includes the FISA court—made up of real, lifetime-tenured federal judges of the same robes you would like approving warrants—that is there by law to be watching out for just your parade of horribles. The poster was roundly criticized for being correct.
        soraminazuki 2y ago
        No, FISA should not be a thing. Wiretap warrants should be reasonably scoped and acquired on an individual basis. There shouldn't be a secret court issuing do-whatever-you-want warrants.
        twoodfin 2y ago
        To get that you have two choices: Do your best to persuade your fellow citizens to elect a President who will choose to forego this part of his Constitutional powers—or get a Constitutional amendment passed. What I keep trying to explain is that this FISA vote can’t address your concerns one way or the other. If you disagree, I wish you’d explain how.
- AnthonyMouse 2y ago
  > You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing. Congress can't pass a law violating the Fourth Amendment. They can certainly pass a law constraining the executive from doing something that is otherwise constitutional, if the courts are reading the Fourth Amendment too narrowly. They could also straightforwardly require the FISA court to publish its opinions, or have the same cases heard in ordinary federal courts with public accountability for the decisions. There is nothing in the constitution requiring secret courts.

The alternative is requiring a warrant, which means following the Constitution. Due process doesn’t disappear because you want it to. Even if someone is supposedly a terrorist or criminal.

twoodfin 2y ago

If you’re hoping the Supreme Court, and in particular this Supreme Court, is going to agree that the Constitution requires the executive branch get a warrant before spying on cross-border communication with a non-citizen, you’re going to be disappointed. FISA is Congress exercising the only authority it has here, which is oversight & regulation. You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.

soraminazuki 2y ago
It's baffling to many people how FISA is even a thing. To a layperson, the Fourth Amendment leaves no room for a rubber stamp court authorizing mass surveillance. And no one except politicians and bureaucrats are buying the argument that this is somehow targeted surveillance. Also, free nations should have higher standards than "Not a citizen? Too bad, anything goes."
- twoodfin 2y ago
  This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free. Congress can regulate the process that must be followed, the documentation that must be made, even require judicial review at the program level to ensure it doesn’t also record traffic that is Constitutionally protected. That’s what FISA is. But it can’t ban that tapping, nor can it require the executive to get a warrant for a particular otherwise Constitutional intercept from an Article 3 court. Which part of this do you think is incorrect?
  - soraminazuki 2y ago
    Where do I even start? Let's first reiterate that even when it's technically legal to screw over non-citizens, it doesn't make it right. That's not the standard expected of a free nation. But let's ignore that for a moment and move on to the next point. Your example is still hoovering up communications from citizens who are supposed to be protected by due process of law. En masse. How does this not run afoul of the law? The problem is compounded by the fact that the internet blurs geographical borders. Wholly domestic communications can and does end up crossing borders. Also, I'd bet a large part of our communications aren't even between people. The majority of the traffic likely are sent to or from computer programs. They happen without most people even realizing it, but contains highly personal information. The simple telegraph analogy doesn't translate well to the internet. What's more, there's currently no meaningful system in place to prevent abuse. And no, a rubber stamp court authorizing dragnet surveillance isn't it.
    - twoodfin 2y ago
      OK, you want FISA to be stricter. But way up thread, someone made the point that it’s FISA itself that puts any meaningful balancing constraints at all on the Constitutional power of the executive. This includes the FISA court—made up of real, lifetime-tenured federal judges of the same robes you would like approving warrants—that is there by law to be watching out for just your parade of horribles. The poster was roundly criticized for being correct.
      - soraminazuki 2y ago
        No, FISA should not be a thing. Wiretap warrants should be reasonably scoped and acquired on an individual basis. There shouldn't be a secret court issuing do-whatever-you-want warrants.
        twoodfin 2y ago
        To get that you have two choices: Do your best to persuade your fellow citizens to elect a President who will choose to forego this part of his Constitutional powers—or get a Constitutional amendment passed. What I keep trying to explain is that this FISA vote can’t address your concerns one way or the other. If you disagree, I wish you’d explain how.
AnthonyMouse 2y ago
> You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing. Congress can't pass a law violating the Fourth Amendment. They can certainly pass a law constraining the executive from doing something that is otherwise constitutional, if the courts are reading the Fourth Amendment too narrowly. They could also straightforwardly require the FISA court to publish its opinions, or have the same cases heard in ordinary federal courts with public accountability for the decisions. There is nothing in the constitution requiring secret courts.