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Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering

151 points by Lightning 13y ago

motters 13y ago
The process of law should not be occult. It's hard to imagine how a secret court could do anything other than pretend to carry out a legal process. For law to be law it needs to be at least in principle knowable by the people to whom it applies.
- rayiner 13y ago
  I agree in principle, but I'm not sure the principle is applicable in this context. The FISC does not make any law binding on individuals. The FISC only guides the DOJ and NSA's investigatory discretion. The people charged with following its interpretations are in the DOJ and NSA, and they know what those interpretations are.
  - IsThisObvious 13y ago
    Except that, you know, this effectively removes any citizen oversight, which is core to democratic societies.
    - rayiner 13y ago
      Sure, but that's a different issue. The post to which I was replying was discussing the issue of holding people responsible for laws they can't know.
    - DannyBee 13y ago
      ???? No, because the citizens can always vote in congresspeople who put an end to it. It was congress who created FISC and FISA, and congress who can end it.
    - tptacek 13y ago
      No it doesn't. The FISA court is a civilian body, the DNI is a civilian position, and the DNI serves at the pleasure of the civilian President. Not only that, but the FISA process isn't emergent from Article III of the Constitution, but is rather an instrument of Congress which can be reformed entirely by civilian legislative acts by representatives directly elected by the population. There is no truth to the idea that NSA lacks civilian oversight. The point you want to be making is about transparency, and about general citizen oversight. The distinction is extremely important; for instance, random citizens of the US have no direct oversight over military operations, never have, and never will. If you make the argument about civilian oversight, you've already lost, because the intelligence system does in fact have civilian oversight; it's just not the oversight you want.
      - IsThisObvious 13y ago
        Yes, avoiding my point by picking at the word choice when the context made it clear that I was talking about oversight by the population, not indirect ones is a totally valid reply. Similarly, if word never filters back, they can't exercise indirect oversight through elected officials, because they're incapable of even knowing that they should be electing officials based on how they will resolve those issues.
        tptacek 13y ago
        Huh? You don't feel like you know enough to vote against your representatives today, or to discern whether you should vote for their opponents? Do they support PATRIOT? Do they support FISA as it stands? If yes to either, vote no. Again the problem isn't oversight, but rather (in this instance) that you realize that most of the population doesn't agree with you, and won't vote a representative out of office solely because of their position on FISA.
      - fnordfnordfnord 13y ago
        >The FISA court is a civilian body Mostly conservative republicans, appointed by a conservative supreme Justice. But civilians, sure. >the DNI is a civilian position, Every DNI there has ever been has either been a spook or a former high-ranking military officer; except Negroponte, who was, weak sauce. >There is no truth to the idea that NSA lacks civilian oversight. There is no truth to the fact that the NSA lacks civilian oversight. As to the idea that the NSA/FISC lacks civilian oversight? There's no reason to believe that any meaningful oversight exists at all. For one example, consider these recent comments by U.S. District Judge Nancy Gertner "As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced."
  - teilo 13y ago
    So what you are saying, in effect, is that government organizations, which are governed by public law, should be able to decide for themselves what that law actually means, by instituting secret courts who are not answerable to the public? Given that the activities of the DOJ and the NSA do in fact have a direct and immediate impact on individuals that the public law is written, ostensibly, to protect, how can it be argued that these organizations should be allowed to interpret the law in a secret manner? My point is, that a law which as written to govern the activities of the DOJ and the NSA, does in fact apply to the public. Consider: there are many laws which govern the activities of the police. These laws are public laws, and effect the public directly. When the police violate these laws (as they often do), a public court interprets the public law with which said police failed to comply, and thus violated your, the public's, rights. The secret FISC courts make it impossible for you to have any recourse in the manner in which your rights are being violated. This is the stuff of communist China.
    - tptacek 13y ago
      No, he doesn't have to make that argument, because Congress deliberately passed rulemaking authority to NSA with the FISA court as a limited check, acting as an agent of Congress. Congress has the authority to do that, just like Congress doesn't have to pass individual acts determining each line item NOAA spends money on, or how exactly EPA will monitor industrial emissions. I'm not saying Congress was smart to concede this authority to NSA and FISA; in fact, I think doing so was a dereliction of their duty. But what it wasn't was a power grab by the surveillance state. Rather, it was Congress being too short-sighted and bored of surveillance issue to properly regulate it.
      - teilo 13y ago
        The argument is: "For law to be law it needs to be at least in principle knowable by the people to whom it applies." My point is that even if the law applied specifically to the NSA/DOJ/FISC, it still applies to each individual, because the laws in question specifically govern how that NSA/DOJ interacts with individuals. No one here is saying that the NSA is acting outside the law. That's the travesty of the thing. They are not. They are doing what congress allowed them to do. But the fact is, congress intentionally setup a system which has, in essence, unbridled power. When you tell a group of enforcers "the law means what you think it means", this is what the inevitable result will be.
  - rhizome 13y ago
    The FISC does not make any law binding on individuals. It most certainly has: citizens of the US have been required to give the intelligence communities their personal data. You may call this something other than "binding," but to imply it doesn't affect individuals (let alone citizens) is a bit imprecise. Surely you aren't saying, "Hey guys, it's only the DOJ."
    - deleted 13y ago
      [deleted]
jdp23 13y ago
The sourcing is "current and former administration and congressional officials". As with the New York Times article on the FISA Court's secret body of law, it's interesting to me that people are discussing this with the press. Are the current administration officials talking with permission? In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.... Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant.
- thwest 13y ago
  They could always enter facts into the congressional records with impunity a la Ellsburg and Kucinich
  - mpyne 13y ago
    And honestly, I'm not sure why they haven't. I mean, it's not like Oregon wouldn't re-elect if they had a Senator famous for sticking up for civil liberties, and they must be well aware of history and precedent. Are they afraid that the First Lady won't invite them to the Christmas dinner? Perhaps they're afraid they'd get kicked off of the Intelligence Committee and lose what little ability to provide oversight they already have?
- ihsw 13y ago
  Some congressional representatives are working hard to put an end to mass-surveillance programs, however their options are limited to talking to the media. Their Senate votes have to follow the party line, otherwise they risk retaliation against their political careers.
  - jdp23 13y ago
    You're right that Wyden and Udall (and earlier Feingold) have been working hard on this, and have repeatedly expressed frustration about what they can't discuss. So it's good to see their offices now feel they can confirm that this is what they were getting at. But what I was calling attention to is the "current and former administration officials", similar to Eric Lichtblau's NY Times description of the people who had seen the FISA court orders. If they're talking with permission, it's a decision by the administration to have a little more transparency (either as spin or because they really believe their rhetoric that the American people will approve once they have the facts). If not, then it's new people taking whistleblower-like actions. Either way, interesting. EDIT: Orin Kerr speculated about Lichtblau's story: I would guess that this leak coming from “current and former officials” is an authorized leak designed to see if revealing some information will take the pressure off to reveal more. If I’m right, we’ll see if it works, or if this leak only creates more pressure to release the opinions or at least reveal more about them. http://www.volokh.com/2013/07/07/hints-and-questions-about-the-secret-fourth-amendment-rulings-of-the-fisa-court/ http://www.volokh.com/2013/07/07/hints-and-questions-about-t...
rayiner 13y ago
The article is methodologically misguided on a key point: > The history of the word 'relevant' is key to understanding that passage. The Supreme Court in 1991 said things are 'relevant' if there is a 'reasonable possibility' that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent. As a general rule, words have to be interpreted in the context of the laws that use them, because the same word can have different connotations in different laws. To use a programming analogy, talking about what "relevant" means in the law is like talking about what "num_files" means in programming. You can get a very general idea from the text, but you don't really know what the term means without looking at the rest of the source. "Relevant" means different things in the law. The article cites the narrow definition used in criminal search cases, but the Patriot Act is about foreign intelligence, not criminal prosecutions. In the law of evidence, for example, "relevant" is extremely broad: anything that could change whether some material fact is more or less likely to be true. You can't take the Supreme Court's interpretation of "relevant" in one case and apply it to the interpretation of the Patriot Act, just as you can't take a variable name in one program and assume it means the same thing in another program.
- tptacek 13y ago
  This is a point Orin Kerr addressed directly a few days ago, in a piece analyzing Lichtblau's NYT FISA bombshell (NYT bombshell story: bolted to top of front page for 2 days; Orin Kerr's careful dissection of same: 3 upvotes). Specifically: the notion of "relevance" we seem to be working from comes from Terry, which is confusing, because Terry determines when the police can briefly detain people and frisk them to ensure the safety of the police officers. Terry isn't (at least as I understand it) doctrinally fundamental in any way.
  - sehugg 13y ago
    Link to article: http://www.volokh.com/2013/07/07/hints-and-questions-about-the-secret-fourth-amendment-rulings-of-the-fisa-court/ http://www.volokh.com/2013/07/07/hints-and-questions-about-t...
mtgx 13y ago
There's no way the Supreme Court would arrive to the same conclusion and definition of "relevant". This is why this stuff needs to be open to the public.
- rhizome 13y ago
  That's exactly why it isn't.
- tptacek 13y ago
  I have absolutely no idea what this comment is supposed to mean. If SCOTUS ruled that any part of FISA was unconstitutional, that ruling would be enforceable. Contrary to the popular misunderstanding of FISA as a shadow court system, FISA enjoys literally zero immunity to judicial review. It's not even a real court.
  - jdp23 13y ago
    Except, of course, that since it's not an adversarial proceeding there isn't anybody to appeal the rulings.
    - tptacek 13y ago
      So? Most decisions the USG makes aren't adversarial, and yet SCOTUS routinely intervenes in them. Again: the best way to think about FISA is to remember that it's not a real court. It's an internal review board staffed by federal judges who can issue warrants. This point is, I think, frequently misinterpreted. It's not a defense of FISA. FISA is a terrible system and a dereliction of the duties of Congress. But it's not an intractable legal obstacle. The reason that it's difficult to engage FISA in the Supreme Court isn't that FISA is shadowy, but rather that the Constitution doesn't have much to say about foreign intelligence, and there aren't a lot of opportunities for citizens to get their hooks into FISA/NSA in order to get standing in court. That would, of course, change rapidly if the FISA process started being used to make criminal cases in the US.
      - 13y ago
coldcode 13y ago
What's relevant is that we shouldn't have secret courts deciding on secret laws. Our legal system should be relevant to We The People and our needs.
D9u 13y ago
This is the same government that allowed a president to debate the meaning of the word "is." http://www.slate.com/articles/news_and_politics/chatterbox/1998/09/bill_clinton_and_the_meaning_of_is.html http://www.slate.com/articles/news_and_politics/chatterbox/1... I am disgusted.
- phene 13y ago
  To be fair, "is" has several distinct meanings in English, which lead to the invention of E-Prime: http://en.wikipedia.org/wiki/E_prime#Different_functions_of_.22to_be.22 http://en.wikipedia.org/wiki/E_prime#Different_functions_of_...
- mpyne 13y ago
  'allowed'? Why would the government forbid him from debating it? Do we have First Amendment rights or not?
Lagged2Death 13y ago
The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent. But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. It is completely absurd to suppose that even the most serious terror attacks in history (like the 9/11 attack) pose any threat to the continued existence and authority of the US government. But that is exactly what this line of reasoning assumes. That's what "national security threat" means. We see this deliberate and erroneous conflation of "terrorism" and "national security" again and again in government statements and policies, and the media parrots it uncritically. Even if we believe that preventing terrorism is extremely important, terror plots and acts of terror do not generally rise to the level of "national security." Even if we accept the (extremely troubling) legal principle that the constitution may be weakened or ignored in the case of national security threats, that doesn't mean we should accept such weakening in the quest to prevent terrorism.
- mpyne 13y ago
  "National security" does not at all relate to "continued existence of the U.S. government". The government will exist as long as the survivors allow it to. On the contrary, it has to do with, literally, the security of the nation itself. Nothing more or less. We wouldn't wait to establish martial law if necessary during invasion until the government were about to fall, after all. The Confederate invasion of Pennsylvania that was stopped at Gettysburg is about as "national security" as it got for the U.S., but that never directly threatened the U.S. government itself.
  - deleted 13y ago
    [deleted]
  - Lagged2Death 13y ago
    ...the security of the nation itself. Nothing more or less. "Nothing more or less" sounds so precise, but "the security of the nation" is (like "national security") so vague as to be virtually meaningless without elaboration. "National security" is often abused to mean pretty much whatever the speaker wants it to mean. But it has always been very much about the continued existence and authority of the government. "National security" as a concept and term didn't exist in the Civil War, but the main threat to "national security" at the time was the attempted secession of several states, which, had it succeeded, would have dramatically altered the power, authority, and nature of the US government.

151 points by Lightning 13y ago

The process of law should not be occult. It's hard to imagine how a secret court could do anything other than pretend to carry out a legal process. For law to be law it needs to be at least in principle knowable by the people to whom it applies.

rayiner 13y ago
I agree in principle, but I'm not sure the principle is applicable in this context. The FISC does not make any law binding on individuals. The FISC only guides the DOJ and NSA's investigatory discretion. The people charged with following its interpretations are in the DOJ and NSA, and they know what those interpretations are.
- IsThisObvious 13y ago
  Except that, you know, this effectively removes any citizen oversight, which is core to democratic societies.
  - rayiner 13y ago
    Sure, but that's a different issue. The post to which I was replying was discussing the issue of holding people responsible for laws they can't know.
  - DannyBee 13y ago
    ???? No, because the citizens can always vote in congresspeople who put an end to it. It was congress who created FISC and FISA, and congress who can end it.
  - tptacek 13y ago
    No it doesn't. The FISA court is a civilian body, the DNI is a civilian position, and the DNI serves at the pleasure of the civilian President. Not only that, but the FISA process isn't emergent from Article III of the Constitution, but is rather an instrument of Congress which can be reformed entirely by civilian legislative acts by representatives directly elected by the population. There is no truth to the idea that NSA lacks civilian oversight. The point you want to be making is about transparency, and about general citizen oversight. The distinction is extremely important; for instance, random citizens of the US have no direct oversight over military operations, never have, and never will. If you make the argument about civilian oversight, you've already lost, because the intelligence system does in fact have civilian oversight; it's just not the oversight you want.
    - IsThisObvious 13y ago
      Yes, avoiding my point by picking at the word choice when the context made it clear that I was talking about oversight by the population, not indirect ones is a totally valid reply. Similarly, if word never filters back, they can't exercise indirect oversight through elected officials, because they're incapable of even knowing that they should be electing officials based on how they will resolve those issues.
      - tptacek 13y ago
        Huh? You don't feel like you know enough to vote against your representatives today, or to discern whether you should vote for their opponents? Do they support PATRIOT? Do they support FISA as it stands? If yes to either, vote no. Again the problem isn't oversight, but rather (in this instance) that you realize that most of the population doesn't agree with you, and won't vote a representative out of office solely because of their position on FISA.
    - fnordfnordfnord 13y ago
      >The FISA court is a civilian body Mostly conservative republicans, appointed by a conservative supreme Justice. But civilians, sure. >the DNI is a civilian position, Every DNI there has ever been has either been a spook or a former high-ranking military officer; except Negroponte, who was, weak sauce. >There is no truth to the idea that NSA lacks civilian oversight. There is no truth to the fact that the NSA lacks civilian oversight. As to the idea that the NSA/FISC lacks civilian oversight? There's no reason to believe that any meaningful oversight exists at all. For one example, consider these recent comments by U.S. District Judge Nancy Gertner "As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced."
- teilo 13y ago
  So what you are saying, in effect, is that government organizations, which are governed by public law, should be able to decide for themselves what that law actually means, by instituting secret courts who are not answerable to the public? Given that the activities of the DOJ and the NSA do in fact have a direct and immediate impact on individuals that the public law is written, ostensibly, to protect, how can it be argued that these organizations should be allowed to interpret the law in a secret manner? My point is, that a law which as written to govern the activities of the DOJ and the NSA, does in fact apply to the public. Consider: there are many laws which govern the activities of the police. These laws are public laws, and effect the public directly. When the police violate these laws (as they often do), a public court interprets the public law with which said police failed to comply, and thus violated your, the public's, rights. The secret FISC courts make it impossible for you to have any recourse in the manner in which your rights are being violated. This is the stuff of communist China.
  - tptacek 13y ago
    No, he doesn't have to make that argument, because Congress deliberately passed rulemaking authority to NSA with the FISA court as a limited check, acting as an agent of Congress. Congress has the authority to do that, just like Congress doesn't have to pass individual acts determining each line item NOAA spends money on, or how exactly EPA will monitor industrial emissions. I'm not saying Congress was smart to concede this authority to NSA and FISA; in fact, I think doing so was a dereliction of their duty. But what it wasn't was a power grab by the surveillance state. Rather, it was Congress being too short-sighted and bored of surveillance issue to properly regulate it.
    - teilo 13y ago
      The argument is: "For law to be law it needs to be at least in principle knowable by the people to whom it applies." My point is that even if the law applied specifically to the NSA/DOJ/FISC, it still applies to each individual, because the laws in question specifically govern how that NSA/DOJ interacts with individuals. No one here is saying that the NSA is acting outside the law. That's the travesty of the thing. They are not. They are doing what congress allowed them to do. But the fact is, congress intentionally setup a system which has, in essence, unbridled power. When you tell a group of enforcers "the law means what you think it means", this is what the inevitable result will be.
- rhizome 13y ago
  The FISC does not make any law binding on individuals. It most certainly has: citizens of the US have been required to give the intelligence communities their personal data. You may call this something other than "binding," but to imply it doesn't affect individuals (let alone citizens) is a bit imprecise. Surely you aren't saying, "Hey guys, it's only the DOJ."
  - deleted 13y ago
    [deleted]

jdp23 13y ago

The sourcing is "current and former administration and congressional officials". As with the New York Times article on the FISA Court's secret body of law, it's interesting to me that people are discussing this with the press. Are the current administration officials talking with permission? In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.... Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant.

thwest 13y ago
They could always enter facts into the congressional records with impunity a la Ellsburg and Kucinich
- mpyne 13y ago
  And honestly, I'm not sure why they haven't. I mean, it's not like Oregon wouldn't re-elect if they had a Senator famous for sticking up for civil liberties, and they must be well aware of history and precedent. Are they afraid that the First Lady won't invite them to the Christmas dinner? Perhaps they're afraid they'd get kicked off of the Intelligence Committee and lose what little ability to provide oversight they already have?
ihsw 13y ago
Some congressional representatives are working hard to put an end to mass-surveillance programs, however their options are limited to talking to the media. Their Senate votes have to follow the party line, otherwise they risk retaliation against their political careers.
- jdp23 13y ago
  You're right that Wyden and Udall (and earlier Feingold) have been working hard on this, and have repeatedly expressed frustration about what they can't discuss. So it's good to see their offices now feel they can confirm that this is what they were getting at. But what I was calling attention to is the "current and former administration officials", similar to Eric Lichtblau's NY Times description of the people who had seen the FISA court orders. If they're talking with permission, it's a decision by the administration to have a little more transparency (either as spin or because they really believe their rhetoric that the American people will approve once they have the facts). If not, then it's new people taking whistleblower-like actions. Either way, interesting. EDIT: Orin Kerr speculated about Lichtblau's story: I would guess that this leak coming from “current and former officials” is an authorized leak designed to see if revealing some information will take the pressure off to reveal more. If I’m right, we’ll see if it works, or if this leak only creates more pressure to release the opinions or at least reveal more about them. http://www.volokh.com/2013/07/07/hints-and-questions-about-the-secret-fourth-amendment-rulings-of-the-fisa-court/ http://www.volokh.com/2013/07/07/hints-and-questions-about-t...

rayiner 13y ago

The article is methodologically misguided on a key point: > The history of the word 'relevant' is key to understanding that passage. The Supreme Court in 1991 said things are 'relevant' if there is a 'reasonable possibility' that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent. As a general rule, words have to be interpreted in the context of the laws that use them, because the same word can have different connotations in different laws. To use a programming analogy, talking about what "relevant" means in the law is like talking about what "num_files" means in programming. You can get a very general idea from the text, but you don't really know what the term means without looking at the rest of the source. "Relevant" means different things in the law. The article cites the narrow definition used in criminal search cases, but the Patriot Act is about foreign intelligence, not criminal prosecutions. In the law of evidence, for example, "relevant" is extremely broad: anything that could change whether some material fact is more or less likely to be true. You can't take the Supreme Court's interpretation of "relevant" in one case and apply it to the interpretation of the Patriot Act, just as you can't take a variable name in one program and assume it means the same thing in another program.

tptacek 13y ago
This is a point Orin Kerr addressed directly a few days ago, in a piece analyzing Lichtblau's NYT FISA bombshell (NYT bombshell story: bolted to top of front page for 2 days; Orin Kerr's careful dissection of same: 3 upvotes). Specifically: the notion of "relevance" we seem to be working from comes from Terry, which is confusing, because Terry determines when the police can briefly detain people and frisk them to ensure the safety of the police officers. Terry isn't (at least as I understand it) doctrinally fundamental in any way.
- sehugg 13y ago
  Link to article: http://www.volokh.com/2013/07/07/hints-and-questions-about-the-secret-fourth-amendment-rulings-of-the-fisa-court/ http://www.volokh.com/2013/07/07/hints-and-questions-about-t...

mtgx 13y ago

There's no way the Supreme Court would arrive to the same conclusion and definition of "relevant". This is why this stuff needs to be open to the public.

rhizome 13y ago
That's exactly why it isn't.
tptacek 13y ago
I have absolutely no idea what this comment is supposed to mean. If SCOTUS ruled that any part of FISA was unconstitutional, that ruling would be enforceable. Contrary to the popular misunderstanding of FISA as a shadow court system, FISA enjoys literally zero immunity to judicial review. It's not even a real court.
- jdp23 13y ago
  Except, of course, that since it's not an adversarial proceeding there isn't anybody to appeal the rulings.
  - tptacek 13y ago
    So? Most decisions the USG makes aren't adversarial, and yet SCOTUS routinely intervenes in them. Again: the best way to think about FISA is to remember that it's not a real court. It's an internal review board staffed by federal judges who can issue warrants. This point is, I think, frequently misinterpreted. It's not a defense of FISA. FISA is a terrible system and a dereliction of the duties of Congress. But it's not an intractable legal obstacle. The reason that it's difficult to engage FISA in the Supreme Court isn't that FISA is shadowy, but rather that the Constitution doesn't have much to say about foreign intelligence, and there aren't a lot of opportunities for citizens to get their hooks into FISA/NSA in order to get standing in court. That would, of course, change rapidly if the FISA process started being used to make criminal cases in the US.
    - 13y ago

coldcode 13y ago

What's relevant is that we shouldn't have secret courts deciding on secret laws. Our legal system should be relevant to We The People and our needs.

D9u 13y ago

This is the same government that allowed a president to debate the meaning of the word "is." http://www.slate.com/articles/news_and_politics/chatterbox/1998/09/bill_clinton_and_the_meaning_of_is.html http://www.slate.com/articles/news_and_politics/chatterbox/1... I am disgusted.

phene 13y ago
To be fair, "is" has several distinct meanings in English, which lead to the invention of E-Prime: http://en.wikipedia.org/wiki/E_prime#Different_functions_of_.22to_be.22 http://en.wikipedia.org/wiki/E_prime#Different_functions_of_...
mpyne 13y ago
'allowed'? Why would the government forbid him from debating it? Do we have First Amendment rights or not?

Lagged2Death 13y ago

The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent. But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. It is completely absurd to suppose that even the most serious terror attacks in history (like the 9/11 attack) pose any threat to the continued existence and authority of the US government. But that is exactly what this line of reasoning assumes. That's what "national security threat" means. We see this deliberate and erroneous conflation of "terrorism" and "national security" again and again in government statements and policies, and the media parrots it uncritically. Even if we believe that preventing terrorism is extremely important, terror plots and acts of terror do not generally rise to the level of "national security." Even if we accept the (extremely troubling) legal principle that the constitution may be weakened or ignored in the case of national security threats, that doesn't mean we should accept such weakening in the quest to prevent terrorism.

mpyne 13y ago
"National security" does not at all relate to "continued existence of the U.S. government". The government will exist as long as the survivors allow it to. On the contrary, it has to do with, literally, the security of the nation itself. Nothing more or less. We wouldn't wait to establish martial law if necessary during invasion until the government were about to fall, after all. The Confederate invasion of Pennsylvania that was stopped at Gettysburg is about as "national security" as it got for the U.S., but that never directly threatened the U.S. government itself.
- deleted 13y ago
  [deleted]
- Lagged2Death 13y ago
  ...the security of the nation itself. Nothing more or less. "Nothing more or less" sounds so precise, but "the security of the nation" is (like "national security") so vague as to be virtually meaningless without elaboration. "National security" is often abused to mean pretty much whatever the speaker wants it to mean. But it has always been very much about the continued existence and authority of the government. "National security" as a concept and term didn't exist in the Civil War, but the main threat to "national security" at the time was the attempted secession of several states, which, had it succeeded, would have dramatically altered the power, authority, and nature of the US government.