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Senators have repeatedly complained that provisions of FISA have been secretly interpreted in ways that differ markedly from the language of the statute. These

by 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.
      - tptacek 13y ago
        It's interesting to observe that targeted airstrikes have been generating similar moral responses since the time they involved people dropping grenades out of the open cockpits of propeller planes.
        lostlogin 13y ago
        Those were not really tattered in the same sense though were they? I am aware of the response early air strikes caused, but even then there were usually (always?) between countries that were at war. The number of drone strike that occur in countries that there is no war with is disturbingly high, and the civilian death rate is classified. How can anyone justify the program when the so called collateral damage isn't allowed to be discussed? Its hard to call the program moral when we don't understand the damage it is doing.
- swombat 13y ago
  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. Thomas - I can't help but feel that you're using words and definitions (aka splitting hairs) to defend something that should not be defended here. With enough effort, almost any unethical behaviour can be made to look justifiable given the circumstances, the complexity of the world, etc etc. In my experience, I've found that a much quicker test of ethics is using the incredibly powerful subconscious brain that we have evolved with, which allows us to make pretty quick decisions about issues of right and wrong. In this case, it's pretty clear which side is wrong and needs to be brought to task and examined more closely. In no way can you possibly suggest that the level of mass spying that the NSA/GCHQ are engaging in is on the right side of the ethical line in the sand and retain any credibility as... as a human being. As for the hair-splitting, I can engage in that too: > 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? Because the executive branch created the secret spying system and then allowed it to feed into the criminal justice system as a secret source of information. Whether or not they knew about the "parallel construction" (which I prefer to call "lying to the judge's face"), they were an essential element of it. Probably they knew, given how sensitive it is. Irrespective, though, these people have done nothing to earn your staunch support. Have they? It's not a case of innocent before proven guilty. First of all, we're talking about a state, not a person. Secondly, there is overwhelming evidence of guilt.
  - tptacek 13y ago
    This is an extremely disingenuous comment. It pretends that I'm making an argument in favor of dragnet surveillance, and pretends that it's inviting a discussion while at the same time asserting that it's impossible to come to any conclusion other than its own while "retaining credibility as a human being". Then it asserts a premise that isn't in the original article or in my comment and demands that I somehow justify it.

by logn 13y ago

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.
    - tptacek 13y ago
      It's interesting to observe that targeted airstrikes have been generating similar moral responses since the time they involved people dropping grenades out of the open cockpits of propeller planes.
      - lostlogin 13y ago
        Those were not really tattered in the same sense though were they? I am aware of the response early air strikes caused, but even then there were usually (always?) between countries that were at war. The number of drone strike that occur in countries that there is no war with is disturbingly high, and the civilian death rate is classified. How can anyone justify the program when the so called collateral damage isn't allowed to be discussed? Its hard to call the program moral when we don't understand the damage it is doing.
swombat 13y ago
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. Thomas - I can't help but feel that you're using words and definitions (aka splitting hairs) to defend something that should not be defended here. With enough effort, almost any unethical behaviour can be made to look justifiable given the circumstances, the complexity of the world, etc etc. In my experience, I've found that a much quicker test of ethics is using the incredibly powerful subconscious brain that we have evolved with, which allows us to make pretty quick decisions about issues of right and wrong. In this case, it's pretty clear which side is wrong and needs to be brought to task and examined more closely. In no way can you possibly suggest that the level of mass spying that the NSA/GCHQ are engaging in is on the right side of the ethical line in the sand and retain any credibility as... as a human being. As for the hair-splitting, I can engage in that too: > 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? Because the executive branch created the secret spying system and then allowed it to feed into the criminal justice system as a secret source of information. Whether or not they knew about the "parallel construction" (which I prefer to call "lying to the judge's face"), they were an essential element of it. Probably they knew, given how sensitive it is. Irrespective, though, these people have done nothing to earn your staunch support. Have they? It's not a case of innocent before proven guilty. First of all, we're talking about a state, not a person. Secondly, there is overwhelming evidence of guilt.
- tptacek 13y ago
  This is an extremely disingenuous comment. It pretends that I'm making an argument in favor of dragnet surveillance, and pretends that it's inviting a discussion while at the same time asserting that it's impossible to come to any conclusion other than its own while "retaining credibility as a human being". Then it asserts a premise that isn't in the original article or in my comment and demands that I somehow justify it.