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Yes and no. The NSA clearly at least makes some attempt to rationalize its actions according to the law and precedent (hence the focus on "metadata", exception

by lukev 13y ago

Yes and no. The NSA clearly at least makes some attempt to rationalize its actions according to the law and precedent (hence the focus on "metadata", exceptions the administrations has made for "national security", etc). This is true even if we on the outside believe those rationalizations to be rather flimsy or themselves unconstitutional. Having an official ruling that explicitly states that certain activities are unconstitutional means, at the very least, that they must come up with new rationalizations (or stop rationalizing altogether, though at that point it'll be harder for your Average Joe NSA Engineer to continue to believe they're the good guy).

rayiner 13y ago
> The NSA clearly at least makes some attempt to rationalize its actions according to the law and precedent (hence the focus on "metadata", exceptions the administrations has made for "national security", etc). It's misleading to call the NSA's legal justifications "flimsy" rationalizations. They're rooted in two well-established principles of American law: 1) Foreigners on foreign soil don't have Constitutional rights. 2) Information knowingly exposed to third parties (such as banks, accountants, etc) are fair game for judicial subpoenas. The NSA's programs aren't resting on reed-like rationalizations. They may be unconstitutional at the edges (procedures for ensuring that target is foreign?), but they're otherwise on solid foundations. Furthermore, the courts won't do anything about (1). It's too deeply embedded a premise. As for (2), courts may very well pull that foundation out from underneath the NSA. But it will be a long process, because it's tied up in the same doctrine that justifies things like the SEC subpoenaing Enron's records from its accountants, and other powers it would be difficult to convince people to abandon.

by lukev 13y ago

rayiner 13y ago

> The NSA clearly at least makes some attempt to rationalize its actions according to the law and precedent (hence the focus on "metadata", exceptions the administrations has made for "national security", etc). It's misleading to call the NSA's legal justifications "flimsy" rationalizations. They're rooted in two well-established principles of American law: 1) Foreigners on foreign soil don't have Constitutional rights. 2) Information knowingly exposed to third parties (such as banks, accountants, etc) are fair game for judicial subpoenas. The NSA's programs aren't resting on reed-like rationalizations. They may be unconstitutional at the edges (procedures for ensuring that target is foreign?), but they're otherwise on solid foundations. Furthermore, the courts won't do anything about (1). It's too deeply embedded a premise. As for (2), courts may very well pull that foundation out from underneath the NSA. But it will be a long process, because it's tied up in the same doctrine that justifies things like the SEC subpoenaing Enron's records from its accountants, and other powers it would be difficult to convince people to abandon.