[HiYaBarbie]

Look, the NSA as an organization, as a whole, is blatantly violating the Constitution, which is supposedly the most sacrosanct law of the nation.

The fact that they don't care about what laws say doesn't get any clearer than that.

The fact that no one from NSA has gone to jail for the NSA violating the Constitution shows.. well, pretty much that the government doesn't bother punishing itself for violating its own laws.

To be fair, that would be kind of silly, after all.

[ikeboy]

Also, even if someone at the NSA carried out a program that violated the Constitution, there still wouldn't be jail time. That's not how the Constitution works.

The Constitution is strictly a metric by which courts decide what laws are allowed to say. It binds Congress, not other government workers. And there's generally a presumption that a law is legal until decided to be unconstitutional in court, otherwise people would be afraid to do their jobs.

[dragonwriter]

> Also, even if someone at the NSA carried out a program that violated the Constitution, there still wouldn't be jail time.

It is true that such would be unlikely to be prosecuted, especially if it was authorized from above (and, depending on how it was authorized, there might even be a legal defense -- while ignorance of the law is not a defense, reasonable reliance on legal representations of those responsible for enforcing the law can be), but there is a specific criminal statute that applies to government employees acting deliberately contrary to Constitutional rights (deprivation of rights under color of law, 18 USC Sec. 242.) And an unconstitutional program might also violate the criminal provisions of FISA.

So its not impossible for them to end up in jail, just unlikely for them to prosecuted.

> That's not how the Constitution works.

Sure, the Constitution itself doesn't provide criminal penalties, but there (as noted above) are statutory provisions creating criminal liability for government officers that use their position to deny people Constitutionally-protected rights.

> The Constitution is strictly a metric by which courts decide what laws are allowed to say. It binds Congress, not other government workers.

This is not, in fact, true. Government actions by actors other than Congress, and not justified by appeals to statute, can be decided on Constitutional grounds, both negative (Constitutional limitations) and positive (questions of whether positive authority is granted.)

Some parts of the Constitution, by their own terms, bind Congress directly (but even these have often been construed as more general restrictions on government power even when not exercised through Congress.)

[ikeboy]

> but there is a specific criminal statute that applies to government employees acting deliberately contrary to Constitutional rights (deprivation of rights under color of law, 18 USC Sec. 242.)

Thank you for that. I think this would come under the "reasonable reliance on legal representations of those responsible for enforcing the law". Is the fact that a (later-to-be-declared-unconstitutional) law allows something itself a defense? I would strongly expect that to be the case, so to the extent that NSA programs were authorized by the Patriot act, even if said act is unconstitutional, workers would be immune.

In any event, following a later-declared-unconstitutional law does not seem to qualify as "deliberately contrary to Constitutional".

>Sure, the Constitution itself doesn't provide criminal penalties, but there (as noted above) are statutory provisions creating criminal liability for government officers that use their position to deny people Constitutionally-protected rights.

Fair enough.

>Government actions by actors other than Congress, and not justified by appeals to statute, can be decided on Constitutional grounds, both negative (Constitutional limitations) and positive (questions of whether positive authority is granted.)

If an action isn't warranted by statute, why would a court consider Constitutional issues at all? What about https://en.wikipedia.org/wiki/Constitutional_avoidance

Could you give an example?

(It can also bind other legislators, not just Congress, and can bind anyone after a court ruling, but that shouldn't get to criminal liability except insofar as that statute you mentioned above).

[ikeboy]

Has any court ruled NSA actions to be against the Constitution?

[ionised]

http://www.reuters.com/article/2015/05/07/us-usa-security-ns...

http://www.freedomwatchusa.org/federal-judge-rules-against-n...

http://edition.cnn.com/2013/12/16/justice/nsa-surveillance-c...

[ikeboy]

The first one doesn't say anything about constitutional issues.

The appeals court did not rule on whether the surveillance violated the U.S. Constitution.

The second link has a ton of links. The first one is only referring to a preliminary injunction; i.e., it found that "there's a good chance the plaintiff will win", but did not find in favor of the plaintiff. As far as I can tell, all the other links there are about the same ruling.

The third link is talking about that same ruling, again:

A federal judge said Monday that he believes the government's once-secret collection of domestic phone records is unconstitutional

Emphasis on believes; that was not a judicial finding that the government violated the constitution.

He didn't even order the government to stop:

However, he put off enforcing his order barring the government from collecting the information, pending an appeal by the government.

What happened on appeal? http://www.cadc.uscourts.gov/internet/opinions.nsf/ED64DC482..., or a more readable summary here http://www.bloomberg.com/news/articles/2015-08-28/u-s-appeal... and http://www.ibtimes.com/nsa-phone-surveillance-ruling-reverse...

[HiYaBarbie]

How does it matter?

[ikeboy]

If years after the Snowden revelation, no one has gotten a court to rule that blatant widespread constitutional violations took place at the NSA, you might want to reconsider your claim that there were blatant violations.