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> The gist of the DOJ's argument is sound. That's a matter of opinion. If one is in favor of government power over the Constitutional rights of individual citi

by ferdo 13y ago

> The gist of the DOJ's argument is sound. That's a matter of opinion. If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense. If one is more partial to individual rights over the power of government, this law just looks draconian. This is all beside the fact that the NSA has always considered itself beyond the law anyway: > "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency." > According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes." > http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

cldr 13y ago
> That's a matter of opinion Well, whether or not an argument is sound (is never|shouldn't be) a matter of opinion. Soundness has nothing to do with whether the premises are true or not, it just means that if the premises are true, the conclusions necessarily follow. Whether the argument is _valid_ or not is a different matter. I'm not commenting on the article or anything, I just thought I'd point that out.
- ferdo 13y ago
  All legal rulings are merely the opinions of fallible people. Some of those fallible people are more authoritarian, some are more libertarian. "The real division is not between conservatives and revolutionaries but between authoritarians and libertarians." -George Orwell, 1948
  - cldr 13y ago
    I'm not saying anything about the ruling, just the general properties of arguments. An argument such as "The moon is made of cheddar cheese, and cheddar cheese is yellow, therefore the moon is yellow" is perfectly sound, invalid though it may be. You had mentioned "If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense". That has to do with whether the argument is valid, not whether it is sound. That was the object of my comment.
- inopinatus 13y ago
  I'll see your point but raise you: the absolute soundness of an argument is distinct from our ability to determine that soundness. This isn't just a technical incompleteness argument; the law is not written using a propositional calculus, but rather an imprecise semantic encoding (which we might refer to as "Legal English") that is subject to multiple interpretations. So in the case of law it is possible/likely/inevitable that the argument is, by the use of natural language, itself ambiguous, so the soundness thereof is a vector state. Or to put it in simpler terms: it is all a matter of opinion.
  - cldr 13y ago
    We can say that reality is a matter of opinion but we can't have that much useful discourse that way :) And in my comment I meant to refer to his statement "if you are in favor of..." which, even if soundness is subjective, doesn't have to do with soundness at all.
    - inopinatus 13y ago
      Thanks for the clarification. It had rather sounded like you were trying to apply the rules of logic to human law, which is of course like trying to urinate in a hurricane.
- makomk 13y ago
  In this case, it's definitely a matter of opinion. rayiner's comment assumes that there's a fundamental difference between "making law" and "interpreting the government's powers under existing law", and that because the FISA court's decision fall under the latter category there's no public interest in knowing how they've interpreted the law - even if those interpretations would shock someone who only knows the letter of the law.
rayiner 13y ago
It is a matter of opinion, but I think you mischaracterize the choices. There is legitimate debate about what kind of balances the Constitution strikes with respect to individual rights versus the executive's authority with regards to foreign affairs and war. I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else. It was a document preoccupied with outlining a system of republican governments. Representative governance was the first principle, not individual rights. Individual rights are part of the scheme, but they are the exception to the general rule of power exercised by a representative government. It was also a document that was a direct response to a previous document that was deemed to leave the federal government with insufficient powers in the areas of internal security and foreign relations. The failure of the federal government to put down an internal insurrection was a major motivation reason for the calling of the constitutional convention. That fact cannot be papered over or forgotten in the obscurity of history. The NSA's interpretations are not inconsistent with its abiding by the law. For better or worse, the Constitution was designed to create an executive with extensive powers in the areas of war and security. It is not inconsistent with the Constitution for the NSA to assert that it does not need enabling Congressional legislation to function. At least, that's one perfectly reasonable interpretation of the Constitution. Similarly, the 4th amendment has never applied to things that cross the border. One of the very first things that First Congress did was pass legislation creating a customs apparatus with warrantless border searches. It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.
- ferdo 13y ago
  > I think it is pure folly to look at the Constitution with libertarian-colored glasses. On the contrary. It's pure folly to exercise authoritarian powers while claiming it's all for our own good: "The means of defense against foreign danger historically have become the instruments of tyranny at home." -James Madison, author of the Constitution. The Constitution was created to clearly delineate powers of government while preserving the liberty of citizens. It's obviously failed in that regard. As said earlier, the entire point is moot anyway as the NSA doesn't consider itself beholden to the law or the Constitution.

by ferdo 13y ago

cldr 13y ago

> That's a matter of opinion Well, whether or not an argument is sound (is never|shouldn't be) a matter of opinion. Soundness has nothing to do with whether the premises are true or not, it just means that if the premises are true, the conclusions necessarily follow. Whether the argument is _valid_ or not is a different matter. I'm not commenting on the article or anything, I just thought I'd point that out.

ferdo 13y ago
All legal rulings are merely the opinions of fallible people. Some of those fallible people are more authoritarian, some are more libertarian. "The real division is not between conservatives and revolutionaries but between authoritarians and libertarians." -George Orwell, 1948
- cldr 13y ago
  I'm not saying anything about the ruling, just the general properties of arguments. An argument such as "The moon is made of cheddar cheese, and cheddar cheese is yellow, therefore the moon is yellow" is perfectly sound, invalid though it may be. You had mentioned "If one is in favor of government power over the Constitutional rights of individual citizens, then I guess it makes some kind of sense". That has to do with whether the argument is valid, not whether it is sound. That was the object of my comment.
inopinatus 13y ago
I'll see your point but raise you: the absolute soundness of an argument is distinct from our ability to determine that soundness. This isn't just a technical incompleteness argument; the law is not written using a propositional calculus, but rather an imprecise semantic encoding (which we might refer to as "Legal English") that is subject to multiple interpretations. So in the case of law it is possible/likely/inevitable that the argument is, by the use of natural language, itself ambiguous, so the soundness thereof is a vector state. Or to put it in simpler terms: it is all a matter of opinion.
- cldr 13y ago
  We can say that reality is a matter of opinion but we can't have that much useful discourse that way :) And in my comment I meant to refer to his statement "if you are in favor of..." which, even if soundness is subjective, doesn't have to do with soundness at all.
  - inopinatus 13y ago
    Thanks for the clarification. It had rather sounded like you were trying to apply the rules of logic to human law, which is of course like trying to urinate in a hurricane.
makomk 13y ago
In this case, it's definitely a matter of opinion. rayiner's comment assumes that there's a fundamental difference between "making law" and "interpreting the government's powers under existing law", and that because the FISA court's decision fall under the latter category there's no public interest in knowing how they've interpreted the law - even if those interpretations would shock someone who only knows the letter of the law.

rayiner 13y ago

It is a matter of opinion, but I think you mischaracterize the choices. There is legitimate debate about what kind of balances the Constitution strikes with respect to individual rights versus the executive's authority with regards to foreign affairs and war. I think it is pure folly to look at the Constitution with libertarian-colored glasses. The Constitution pre-dates modern conceptions of libertarianism that place individual rights above all else. It was a document preoccupied with outlining a system of republican governments. Representative governance was the first principle, not individual rights. Individual rights are part of the scheme, but they are the exception to the general rule of power exercised by a representative government. It was also a document that was a direct response to a previous document that was deemed to leave the federal government with insufficient powers in the areas of internal security and foreign relations. The failure of the federal government to put down an internal insurrection was a major motivation reason for the calling of the constitutional convention. That fact cannot be papered over or forgotten in the obscurity of history. The NSA's interpretations are not inconsistent with its abiding by the law. For better or worse, the Constitution was designed to create an executive with extensive powers in the areas of war and security. It is not inconsistent with the Constitution for the NSA to assert that it does not need enabling Congressional legislation to function. At least, that's one perfectly reasonable interpretation of the Constitution. Similarly, the 4th amendment has never applied to things that cross the border. One of the very first things that First Congress did was pass legislation creating a customs apparatus with warrantless border searches. It's not at all controversial, legally, for the NSA to assert that 4th amendment protections do not apply to communications that cross the border.

ferdo 13y ago
> I think it is pure folly to look at the Constitution with libertarian-colored glasses. On the contrary. It's pure folly to exercise authoritarian powers while claiming it's all for our own good: "The means of defense against foreign danger historically have become the instruments of tyranny at home." -James Madison, author of the Constitution. The Constitution was created to clearly delineate powers of government while preserving the liberty of citizens. It's obviously failed in that regard. As said earlier, the entire point is moot anyway as the NSA doesn't consider itself beholden to the law or the Constitution.