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It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. If the FISA decided that the NSA's activities were illegal, w

It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? It seems like at that point it should deny every single request going forward until the illegal activities have stopped. Is there a process for impeaching the FISA judges for malfeasance?

ihsw 13y ago
It's a matter of official policy to include legal loopholes that enable the Federal government to assert its power rather than comply with the law.
- 001sky 13y ago
  This would be an interesting fodder for case studies... Any empirical examples for benchmarking?
  - jmduke 13y ago
    Take my advice with a grain of salt, but I think asking for legal analysis from Hacker News is like asking for technological analysis from Seeking Alpha.
- ionforce 13y ago
  I'm curious what you mean when you say "official policy". Did you mean, that's how the machine works, people will always find/create loopholes. Or did you mean there is a technical provision somewhere that somehow mandates the existence of such loopholes?
  - moocowduckquack 13y ago
    Catch22
- inopinatus 13y ago
  "Bernard, the Official Secrets Act is not to protect secrets, it is to protect officials."[1] [1] Sir Humphrey Appleby, Jobs for the Boys (e/o "Yes Minister"), Jay A and Lynn J, BBC; first broadcast April 7, 1980.
  - throwaway987654 13y ago
    I don't know about UK law, but that behavior is in direct contravention of of the executive order establishing the classification system. "In no case shall information be classified ... in order to conceal ... administrative error; prevent embarrassment ..." See section 1.7(a) of http://en.wikisource.org/wiki/Executive_Order_13526 http://en.wikisource.org/wiki/Executive_Order_13526
j_baker 13y ago
Any "civil officer of the United States" can be impeached. In fact, judges are the majority of officials that have been successfully impeached. Calls for impeachment are more often frivolous than they are serious though. How do you know the court has continued to rubber-stamp the activities it considers unconstitutional?
- chinpokomon 13y ago
  How do you know they haven't?
anigbrowl 13y ago
If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis - not least because their decisions might be classified now, but may well be declassified in the future, and their reasoning will be held up to scrutiny. More importantly, just because an agency is found to have operated illegally does not mean that everything the agency does must then be rejected. It's easy to find examples of police officers or even entire departments being corrupt, but it does not follow that everyone who is arrested by the police is necessarily innocent, or that all arrests are flawed. Arguments of the kind you make above involve a fallacy of composition, one which seems to appear ever more frequently on HN. http://en.wikipedia.org/wiki/Fallacy_of_composition http://en.wikipedia.org/wiki/Fallacy_of_composition
- impendia 13y ago
  I disagree that this argument involves a fallacy. The following statements are not equivalent: 1. It seems like at that point it should deny every single request going forward until the illegal activities have stopped. 2. Every request going forward is illegitimate. (2) is false, but I believe that (1) is plausible, especially if there are any difficulties for FISA to determine whether any particular NSA request is legitimate or not.
  - anigbrowl 13y ago
    I think that they are; if you're sufficiently convinced of 1), then 2) follows as a matter of logic.
    - AnthonyMouse 13y ago
      Not necessarily. The court can do (1) in order to punish the government for not complying, similar to excluding improperly obtained evidence that would otherwise be relevant.
    - impendia 13y ago
      Only if you define "legitimate" so that what you say is tautological; not if "legitimate" means, for example, "concerning a targeted and specific terrorist threat".
tzs 13y ago
One FISA judge ruled that one particular program (or perhaps part of one particular program) was unconstitutional. I don't believe we know any of the following: 1. Whether or not that is binding precedent on other FISA judges. 2. Whether or not that program (or that aspect of that program) continued after the ruling. 3. If it did continue, whether or not it was modified to address the concerns of that one judge.
dragonwriter 13y ago
> If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? The issue is releasing an order in which they found some collection that the government engaged in under section 702 minimization procedures violated the Fourth Amendment, not that the program as a whole did so. Presumably, the situations in which it found that would not be the same ones for which it approved warrants.
e3pi 13y ago
>It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. Unable to be aware of the current secret case law history, addressing the FISA secret court, is it intellectually dishonest to still say, `Your Honor?'"

ihsw 13y ago

It's a matter of official policy to include legal loopholes that enable the Federal government to assert its power rather than comply with the law.

001sky 13y ago
This would be an interesting fodder for case studies... Any empirical examples for benchmarking?
- jmduke 13y ago
  Take my advice with a grain of salt, but I think asking for legal analysis from Hacker News is like asking for technological analysis from Seeking Alpha.
ionforce 13y ago
I'm curious what you mean when you say "official policy". Did you mean, that's how the machine works, people will always find/create loopholes. Or did you mean there is a technical provision somewhere that somehow mandates the existence of such loopholes?
- moocowduckquack 13y ago
  Catch22
inopinatus 13y ago
"Bernard, the Official Secrets Act is not to protect secrets, it is to protect officials."[1] [1] Sir Humphrey Appleby, Jobs for the Boys (e/o "Yes Minister"), Jay A and Lynn J, BBC; first broadcast April 7, 1980.
- throwaway987654 13y ago
  I don't know about UK law, but that behavior is in direct contravention of of the executive order establishing the classification system. "In no case shall information be classified ... in order to conceal ... administrative error; prevent embarrassment ..." See section 1.7(a) of http://en.wikisource.org/wiki/Executive_Order_13526 http://en.wikisource.org/wiki/Executive_Order_13526

j_baker 13y ago

Any "civil officer of the United States" can be impeached. In fact, judges are the majority of officials that have been successfully impeached. Calls for impeachment are more often frivolous than they are serious though. How do you know the court has continued to rubber-stamp the activities it considers unconstitutional?

chinpokomon 13y ago
How do you know they haven't?

anigbrowl 13y ago

If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis - not least because their decisions might be classified now, but may well be declassified in the future, and their reasoning will be held up to scrutiny. More importantly, just because an agency is found to have operated illegally does not mean that everything the agency does must then be rejected. It's easy to find examples of police officers or even entire departments being corrupt, but it does not follow that everyone who is arrested by the police is necessarily innocent, or that all arrests are flawed. Arguments of the kind you make above involve a fallacy of composition, one which seems to appear ever more frequently on HN. http://en.wikipedia.org/wiki/Fallacy_of_composition http://en.wikipedia.org/wiki/Fallacy_of_composition

impendia 13y ago
I disagree that this argument involves a fallacy. The following statements are not equivalent: 1. It seems like at that point it should deny every single request going forward until the illegal activities have stopped. 2. Every request going forward is illegitimate. (2) is false, but I believe that (1) is plausible, especially if there are any difficulties for FISA to determine whether any particular NSA request is legitimate or not.
- anigbrowl 13y ago
  I think that they are; if you're sufficiently convinced of 1), then 2) follows as a matter of logic.
  - AnthonyMouse 13y ago
    Not necessarily. The court can do (1) in order to punish the government for not complying, similar to excluding improperly obtained evidence that would otherwise be relevant.
  - impendia 13y ago
    Only if you define "legitimate" so that what you say is tautological; not if "legitimate" means, for example, "concerning a targeted and specific terrorist threat".

tzs 13y ago

One FISA judge ruled that one particular program (or perhaps part of one particular program) was unconstitutional. I don't believe we know any of the following: 1. Whether or not that is binding precedent on other FISA judges. 2. Whether or not that program (or that aspect of that program) continued after the ruling. 3. If it did continue, whether or not it was modified to address the concerns of that one judge.

dragonwriter 13y ago

> If the FISA decided that the NSA's activities were illegal, why would it keep rubber-stamping the warrants? The issue is releasing an order in which they found some collection that the government engaged in under section 702 minimization procedures violated the Fourth Amendment, not that the program as a whole did so. Presumably, the situations in which it found that would not be the same ones for which it approved warrants.

e3pi 13y ago

>It's fascinating that the situation is such a mockery of the rule of law, yet it keeps on rolling. Unable to be aware of the current secret case law history, addressing the FISA secret court, is it intellectually dishonest to still say, `Your Honor?'"