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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 la

by 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
      - tptacek 13y ago
        That's a grotesque oversimplification and decontextualization of the administration's position. Every administration has considered itself able to "kill Americans without trial" (a) on foreign soil, (b) during hostilities, (c) when the target has allied itself with an adversary. American citizens fought along the Nazis and could not expect due process from Allied machine guns. Similarly, every American police force considers itself able to kill American citizens without trial, when those Americans are threatening deadly force in such a way that killing them is the most certain way to save lives. Your quote about the NSA has nothing to do with criminal evidence.
        lostlogin 13y ago
        You over simplify too. Shooting someone in a war zone with confusion explosions and well, a war happening is a bit different to assassinating someone with a drone. Calculated and controlled targeted killing of an individual is nothing like the front lines in WW2. It is an awful lot closer to murder in my opinion. But human rights haven't been a strong suit in US policy, particularly when off US soil, for some time. Edit: badly worded.
- jfoutz 13y ago
  It revolves around the patriot act section 215. https://www.aclu.org/free-speech-national-security-technology-and-liberty/reform-patriot-act-section-215 https://www.aclu.org/free-speech-national-security-technolog... They are not forthcoming about what the interpretation might be because it's exempt from FOIA. https://www.aclu.org/files/assets/patriot_act_section_215_foia_-_olc_letter_march_2012.pdf https://www.aclu.org/files/assets/patriot_act_section_215_fo...
  - mpyne 13y ago
    > They are not forthcoming about what the interpretation might be because it's exempt from FOIA. So, the safe thing is to assume that anything permitted by Section 215 is actually being performed. In other words, the executive branch is not expanding the law, but they are refusing to detail what specific areas within the law they are paying special attention to, since that would simply be a blueprint of areas to avoid. If the executive actually is being allowed by the judiciary to do things which are outside the scope of the public law (incl. section 215) then that's a serious matter indeed. But we don't typically demand that the executive always detail the implementation plan to implement the requirements of the law. Imagine being able to call the police department and get an exact list of DUI enforcement areas along with exact times for weeks in advance.
    - jfoutz 13y ago
      It depends upon what the meaning of the word 'is' is. I dunno. I can think of two interpretations of this one phrase "protect against international terrorism or clandestine intelligence activities".
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?)

by tedivm 13y ago

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
    - tptacek 13y ago
      That's a grotesque oversimplification and decontextualization of the administration's position. Every administration has considered itself able to "kill Americans without trial" (a) on foreign soil, (b) during hostilities, (c) when the target has allied itself with an adversary. American citizens fought along the Nazis and could not expect due process from Allied machine guns. Similarly, every American police force considers itself able to kill American citizens without trial, when those Americans are threatening deadly force in such a way that killing them is the most certain way to save lives. Your quote about the NSA has nothing to do with criminal evidence.
      - lostlogin 13y ago
        You over simplify too. Shooting someone in a war zone with confusion explosions and well, a war happening is a bit different to assassinating someone with a drone. Calculated and controlled targeted killing of an individual is nothing like the front lines in WW2. It is an awful lot closer to murder in my opinion. But human rights haven't been a strong suit in US policy, particularly when off US soil, for some time. Edit: badly worded.
jfoutz 13y ago
It revolves around the patriot act section 215. https://www.aclu.org/free-speech-national-security-technology-and-liberty/reform-patriot-act-section-215 https://www.aclu.org/free-speech-national-security-technolog... They are not forthcoming about what the interpretation might be because it's exempt from FOIA. https://www.aclu.org/files/assets/patriot_act_section_215_foia_-_olc_letter_march_2012.pdf https://www.aclu.org/files/assets/patriot_act_section_215_fo...
- mpyne 13y ago
  > They are not forthcoming about what the interpretation might be because it's exempt from FOIA. So, the safe thing is to assume that anything permitted by Section 215 is actually being performed. In other words, the executive branch is not expanding the law, but they are refusing to detail what specific areas within the law they are paying special attention to, since that would simply be a blueprint of areas to avoid. If the executive actually is being allowed by the judiciary to do things which are outside the scope of the public law (incl. section 215) then that's a serious matter indeed. But we don't typically demand that the executive always detail the implementation plan to implement the requirements of the law. Imagine being able to call the police department and get an exact list of DUI enforcement areas along with exact times for weeks in advance.
  - jfoutz 13y ago
    It depends upon what the meaning of the word 'is' is. I dunno. I can think of two interpretations of this one phrase "protect against international terrorism or clandestine intelligence activities".

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?)