8 ms·

This is a good out for Obama. He can't cancel the program or he may appear soft on terror, hurting Democratic presidential chances. Furthermore, the underlyin

by codex 13y ago

This is a good out for Obama. He can't cancel the program or he may appear soft on terror, hurting Democratic presidential chances. Furthermore, the underlying surveillance law was passed by Congress (FISA Amendments Act of 2008), and he has a duty to uphold it. However, he doesn't want to continue these programs unless they are constitutional. Letting the Supreme Court review the program either shuts it down or gives it a stamp of legality. Now that derived evidence has been introduced into a criminal court, someone finally has standing to sue. This may be a part of a gradual wind down of the war on terror.

hrasyid 13y ago
Turns out he's a good guy after all, huh?
- SCAQTony 13y ago
  This is not an "out" but rather it is an "in." This terrible fourth amendment violation will be rubber stamped by the judiciary and this practice will filter it's way down to the local level. Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."
tedivm 13y ago
Blaming congress for this is an easy out, but doesn't stand up to real scrutiny. Lets not forget that the executive branch has a secret interpretation of the law, one that many in congress were unaware of, that allowed them to go well above and beyond anything actually authorized by congress.
- tptacek 13y ago
  They do? What would that be? What have you learned about it that you can tell us about?
  - D9u 13y ago
    I believe the weasel-words are "intercept," and "collect."
  - logn 13y ago
    Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These interpretations, according to the Senators, are contained in opinions issued by the FISC. from: https://www.eff.org/deeplinks/2013/01/new-year-new-fisa-amendments-act-reauthorization-same-old-secret-law https://www.eff.org/deeplinks/2013/01/new-year-new-fisa-amen...
    - tptacek 13y ago
      It's clear to me (and I hope everyone) that the executive branch and particularly the DoD is not transparent. While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process. But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?
      - ferdo 13y ago
        > in what sense does this executive branch have secret rules or norms that apply to the criminal justice system? It considers itself above the law to the point of being able to kill Americans without trial. That aside, 40 years ago the NSA stated that it was above the law because it was created by Executive decree and tus not bound by statutory law: "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." [1] [1] Church Committee Report on NSA Surveillance Affecting Americans (1975) https://news.ycombinator.com/item?id=5920793 https://news.ycombinator.com/item?id=5920793
- pekk 13y ago
  Blaming congress for laws passed? Really?
- rtpg 13y ago
  I never got the complaints of secret interpretations. I have a secret interpretation of what someone is saying when they're trying to BS me about something. This is basically saying "The administration sees this one way, but they're not telling us how they see it" It's not a secret law. It's just how they interpret it (and even without the secrecy, would it be that surprising to find they consider their actions constitutional?)
revelation 13y ago
"Obama" has nothing to do with this. They argued themselves into a corner; telling the Supreme Court they inform accused of the source of the evidence to win a "no standing" (under the assumption that someone would have standing), then not informing anyone.
- D9u 13y ago
  I clearly remember Obama denouncing the wholesale and indiscriminate surveillance of innocent people prior to his election to the presidency, yet now that he's in the White House he's suddenly promoting the very programs which he once found deplorable. Remember? http://youtu.be/aznaD8yzVjM http://youtu.be/aznaD8yzVjM The FISC has found that there have been numerous violations by NSA et al, yet the juggernaut rolls on... Secret courts. Secret police. Secret orders. "... this is not who we are."
jey 13y ago
Or maybe they just realized they couldn't really legally justify the the "parallel reconstruction" thing where they basically lie to the court through omission.
- emiliobumachar 13y ago
  "through omission"? I thought the parellel construction concept involves coming up with an explicit fake story about how some unrelated thought process happened to take the investigtion in a direction which ended up uncovering the evidence in question.
  - jey 13y ago
    The whole point of it is to avoid telling the court and defense about unconstitutional search procedures that were used, i.e. omitting them.
tshile 13y ago
> However, he doesn't want to continue these programs unless they are constitutional. That's a strong statement, one that I don't believe has any support other than campaign rhetoric (ie: no real support) One only needs to look at the signing into law of the patriot act extension and the NDAA to see that Obama is in no way different than Bush when it comes to these sorts of laws. Reading the original article this appears to have absolutely nothing to do with Obama and any of his campaign promises of rhetoric, but everything to do with Mr. Verrilli discovering that the argument he made to the SCOTUS (ultimately leading to the dismissal of the case in favor of the DOJ) was based on a lie and/or is no longer true.
mtgx 13y ago
> However, he doesn't want to continue these programs unless they are constitutional Citation needed. So far I haven't need Obama even imply that he doesn't actually want these programs. All that he has said or implied so far was that we need to accept the mass surveillance, because that would be a "balance" between privacy and security. He believes this is a the "balance" - regardless of its constitutionality (and so far the administration has done everything in its power to fight against cases that question the legality of it all). Also, Dianne Feinstein explicitly said the Obama Administration wanted FISA Amendments Act to be renewed, too, when she asked Senate to renew it last year.
joe_the_user 13y ago
However, he doesn't want to continue these programs unless they are constitutional. Yo, that's some wicked spin ya' got on that sentence of yours. Implying the slightest good intention to Obama in these circumstances seems deplorable. If Obama didn't want to enforce the program, he could have stopped when it was secret and no one could complain. If there's an objective "guide" to Obama's supposed intentions, it's what his administration did in secret because they had very few controls on their surveillance approach. The better to describe thing is: He'd like to continue program and he'd like to have it declared constitutional. And don't bet this won't be declared constitutional given the Supreme Court's history and it's entanglement with the current system. Sure it would be lighting the constitution fire, tearing it, vaporizing the pieces and throwing them in a volcano. But hey, that's progress.
- Natsu 13y ago
  That's my bet, too: that they expect constitutionality to be challenged eventually and this is them moving to pick their battleground.
- pstuart 13y ago
  Here's an interesting thought: maybe Obama's intentions are good but he's in a bubble of information and influences that corrupts his thoughts to overlook the the very concerns that alarm the crowd here at HN. I'm of the naive opinion that he is not a sleeper muslim communist agent bent on destroying America; that he really wants to do the best he can for America. He's not always right in his beliefs, but has been public about his intentions, e.g., continuing engagement in Afghanistan.
  - jambo 13y ago
    You set up and knock down a straw man. No one has suggested they subscribe to a "secret Muslim" conspiracy theory.
    - pstuart 13y ago
      So what is the angle that does support the notion that he acting with malice in his heart? And if he's not acting in malice, why would he be doing what he's doing now when he is well-versed in the Constitution? Note: I disagree with a lot of his policies (including this topic), I'm going for a first-principles thing here.
jboggan 13y ago
The executive branch willfully fails to enforce many laws passed by Congress as well as breaking clear restrictions on it imposed by that body and the Constitution. I would not presume to know the President's mind and will suggest that you do not either, but his actions and track record are fairly clear. I know he was elected by many with the hope that he would end the ludicrously named "War on Terror", but it simply hasn't come to fruition. I would hope that after almost 5 years of this behavior we would cease pinning our hopes on the President.
grey-area 13y ago
However, he doesn't want to continue these programs unless they are constitutional...This may be a part of a gradual wind down of the war on terror. Obama has expanded the war on terror to several new countries, and oversees assassinations by drone regularly. He may talk convincingly about civil rights, but he has overseen the expansion of a system denying people those rights, and I have no doubt he is completely aware of just how pervasive and unconstitutional these surveillance programs are but has no intention of changing them, just as he has no intention of winding down the war on terror (as shown by his actions, not his words).

by codex 13y ago

hrasyid 13y ago

Turns out he's a good guy after all, huh?

SCAQTony 13y ago
This is not an "out" but rather it is an "in." This terrible fourth amendment violation will be rubber stamped by the judiciary and this practice will filter it's way down to the local level. Then the last step of this terrible spiral will be unscrupulous intelligence officials planting digital evidence to make a case or do "what is right for the country."

tedivm 13y ago

Blaming congress for this is an easy out, but doesn't stand up to real scrutiny. Lets not forget that the executive branch has a secret interpretation of the law, one that many in congress were unaware of, that allowed them to go well above and beyond anything actually authorized by congress.

tptacek 13y ago
They do? What would that be? What have you learned about it that you can tell us about?
- D9u 13y ago
  I believe the weasel-words are "intercept," and "collect."
- logn 13y ago
  Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These interpretations, according to the Senators, are contained in opinions issued by the FISC. from: https://www.eff.org/deeplinks/2013/01/new-year-new-fisa-amendments-act-reauthorization-same-old-secret-law https://www.eff.org/deeplinks/2013/01/new-year-new-fisa-amen...
  - tptacek 13y ago
    It's clear to me (and I hope everyone) that the executive branch and particularly the DoD is not transparent. While most laws exist simultaneously in the distinct (and sometimes even contradictory) forms of statutes, rules, and operational norms, foreign intelligence laws start out by necessity with fuzzy statutory foundations, and end by necessity with secret operational norms. This situation is indeed exacerbated by the DoD's (and, I suppose, FISC's) unwillingness to be clear about its rules and rulemaking process. But this is an article about the use of surveillance evidence as criminal evidence. So, my refined question would be, in what sense does this executive branch have secret rules or norms that apply to the criminal justice system?
    - ferdo 13y ago
      > in what sense does this executive branch have secret rules or norms that apply to the criminal justice system? It considers itself above the law to the point of being able to kill Americans without trial. That aside, 40 years ago the NSA stated that it was above the law because it was created by Executive decree and tus not bound by statutory law: "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." [1] [1] Church Committee Report on NSA Surveillance Affecting Americans (1975) https://news.ycombinator.com/item?id=5920793 https://news.ycombinator.com/item?id=5920793
pekk 13y ago
Blaming congress for laws passed? Really?
rtpg 13y ago
I never got the complaints of secret interpretations. I have a secret interpretation of what someone is saying when they're trying to BS me about something. This is basically saying "The administration sees this one way, but they're not telling us how they see it" It's not a secret law. It's just how they interpret it (and even without the secrecy, would it be that surprising to find they consider their actions constitutional?)

revelation 13y ago

"Obama" has nothing to do with this. They argued themselves into a corner; telling the Supreme Court they inform accused of the source of the evidence to win a "no standing" (under the assumption that someone would have standing), then not informing anyone.

D9u 13y ago
I clearly remember Obama denouncing the wholesale and indiscriminate surveillance of innocent people prior to his election to the presidency, yet now that he's in the White House he's suddenly promoting the very programs which he once found deplorable. Remember? http://youtu.be/aznaD8yzVjM http://youtu.be/aznaD8yzVjM The FISC has found that there have been numerous violations by NSA et al, yet the juggernaut rolls on... Secret courts. Secret police. Secret orders. "... this is not who we are."

jey 13y ago

Or maybe they just realized they couldn't really legally justify the the "parallel reconstruction" thing where they basically lie to the court through omission.

emiliobumachar 13y ago
"through omission"? I thought the parellel construction concept involves coming up with an explicit fake story about how some unrelated thought process happened to take the investigtion in a direction which ended up uncovering the evidence in question.
- jey 13y ago
  The whole point of it is to avoid telling the court and defense about unconstitutional search procedures that were used, i.e. omitting them.

tshile 13y ago

> However, he doesn't want to continue these programs unless they are constitutional. That's a strong statement, one that I don't believe has any support other than campaign rhetoric (ie: no real support) One only needs to look at the signing into law of the patriot act extension and the NDAA to see that Obama is in no way different than Bush when it comes to these sorts of laws. Reading the original article this appears to have absolutely nothing to do with Obama and any of his campaign promises of rhetoric, but everything to do with Mr. Verrilli discovering that the argument he made to the SCOTUS (ultimately leading to the dismissal of the case in favor of the DOJ) was based on a lie and/or is no longer true.

mtgx 13y ago

> However, he doesn't want to continue these programs unless they are constitutional Citation needed. So far I haven't need Obama even imply that he doesn't actually want these programs. All that he has said or implied so far was that we need to accept the mass surveillance, because that would be a "balance" between privacy and security. He believes this is a the "balance" - regardless of its constitutionality (and so far the administration has done everything in its power to fight against cases that question the legality of it all). Also, Dianne Feinstein explicitly said the Obama Administration wanted FISA Amendments Act to be renewed, too, when she asked Senate to renew it last year.

joe_the_user 13y ago

However, he doesn't want to continue these programs unless they are constitutional. Yo, that's some wicked spin ya' got on that sentence of yours. Implying the slightest good intention to Obama in these circumstances seems deplorable. If Obama didn't want to enforce the program, he could have stopped when it was secret and no one could complain. If there's an objective "guide" to Obama's supposed intentions, it's what his administration did in secret because they had very few controls on their surveillance approach. The better to describe thing is: He'd like to continue program and he'd like to have it declared constitutional. And don't bet this won't be declared constitutional given the Supreme Court's history and it's entanglement with the current system. Sure it would be lighting the constitution fire, tearing it, vaporizing the pieces and throwing them in a volcano. But hey, that's progress.

Natsu 13y ago
That's my bet, too: that they expect constitutionality to be challenged eventually and this is them moving to pick their battleground.
pstuart 13y ago
Here's an interesting thought: maybe Obama's intentions are good but he's in a bubble of information and influences that corrupts his thoughts to overlook the the very concerns that alarm the crowd here at HN. I'm of the naive opinion that he is not a sleeper muslim communist agent bent on destroying America; that he really wants to do the best he can for America. He's not always right in his beliefs, but has been public about his intentions, e.g., continuing engagement in Afghanistan.
- jambo 13y ago
  You set up and knock down a straw man. No one has suggested they subscribe to a "secret Muslim" conspiracy theory.
  - pstuart 13y ago
    So what is the angle that does support the notion that he acting with malice in his heart? And if he's not acting in malice, why would he be doing what he's doing now when he is well-versed in the Constitution? Note: I disagree with a lot of his policies (including this topic), I'm going for a first-principles thing here.

jboggan 13y ago

The executive branch willfully fails to enforce many laws passed by Congress as well as breaking clear restrictions on it imposed by that body and the Constitution. I would not presume to know the President's mind and will suggest that you do not either, but his actions and track record are fairly clear. I know he was elected by many with the hope that he would end the ludicrously named "War on Terror", but it simply hasn't come to fruition. I would hope that after almost 5 years of this behavior we would cease pinning our hopes on the President.

grey-area 13y ago

However, he doesn't want to continue these programs unless they are constitutional...This may be a part of a gradual wind down of the war on terror. Obama has expanded the war on terror to several new countries, and oversees assassinations by drone regularly. He may talk convincingly about civil rights, but he has overseen the expansion of a system denying people those rights, and I have no doubt he is completely aware of just how pervasive and unconstitutional these surveillance programs are but has no intention of changing them, just as he has no intention of winding down the war on terror (as shown by his actions, not his words).