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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

by 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."
      - tptacek 13y ago
        I have no faith in the FISA court, but I have a different diagnosis than you do about why the process isn't trustworthy, and my prescription for solving the problem doesn't have anything to do with strengthening the FISC.
- 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]

by motters 13y ago

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."
    - tptacek 13y ago
      I have no faith in the FISA court, but I have a different diagnosis than you do about why the process isn't trustworthy, and my prescription for solving the problem doesn't have anything to do with strengthening the FISC.
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]