[gknoy]

> My guess is that much of the relevant laws will be struck down. > If the Supreme Court strikes down the laws, they will be gone -- out'a here.... > What matters are the laws, not what Presidents ... say.... Instead what matters here is what laws the Supreme Court says are Constitutional.

I wish I shared your optimism.

I sincerely hope that the laws will get struck down, but I also fear that the classified nature of many things that touch this will lead the courts to say that we can't show we have standing, and therefore decline to rule on the constitutionality.

More importantly, what matters is NOT just what the laws say, but whether the government follows them! The core issue here is that we believe the laws and constitution are NOT being followed, and that the government feels that What the King Does Is Legal. That was Nixon's claim, and in effect is what the Bush administration claimed re: treatment of prisoners at Guantanamo Bay. This time around, the fact that it's being done by the NSA with the President's permission allows them to claim that the classified nature of nearly everything at stake here means we should trust them.

Getting the laws overturned will be a HUGE first step, though, and you laid out in excellent detail things that we citizens can (and should) do and expect.

[jacoblyles]

Part of the NSA's surveillance program was already found to be illegal and the executive branch classified the court's ruling:

http://blog.rongarret.info/2013/06/court-finds-nsa-surveilla...

How screwed up is that?

[aznjons]

I had no idea about this issue, thanks for the link! Looks like the FISC overruled the executive branch's argument about classifying the ruling. Kudos to the EFF.

https://www.eff.org/deeplinks/2013/06/public-first-secret-co...

Honestly, what does the executive branch hope to accomplish by classifying the ruling that it was illegal? It sounds like everyone already knows what the ruling was even if the documents themselves are classified. Seems like a weak measure that makes them look worse, that they are willing to exercise the power to hide things (a power one would hope would be used responsibly) even in cases where it doesn't seem to help their goals in a meaningful way? Am I missing something here?

[graycat]

> Am I missing something here?

No. Money is the mother's milk of politics, and secrecy is the favorite dessert of bureaucracies.

Much of why W, Obama, etc. want the Patriot Act is to have power to catch the bad guys so that they, W, Obama, etc., won't get blamed. Indeed if a president doesn't defend the Patriot Act, the NSA, etc. and there is another Boston bomber, then some people will try to sell the charge that "The president is soft on terrorism." So, a president will want to defend the Patriot Act, etc. right up until the Supreme Court strikes down the act. Then a president will say that he did all he could to protect us against the bad guys, and the part of government soft on terrorism was the Supreme Court or just say that the Supreme Court showed us what we have to do to defend the Constitution.

A politician wants to avoid chances that opponents could say that the politician was to blame. Generally politicians get an A+ in CYA.

Generally the hope that a politician will be more responsible is a well informed citizenry making their opinions heard. That's why here on HN I'm putting out there that my view is that we need to protect the Constitution; the Patriot Act, etc. and the NSA have been trashing the Constitution; it's not worth trashing the Constitution to catch Boston wackos with pressure cookers; so, let's get the NSA, etc. back within the Constitution and otherwise do what we can with Boston police, the FBI, etc. about Boston wackos. Indeed, the Russians told us that the Boston bombers were dangerous wackos, and still we didn't do enough.

One more point is that so far a few wacko Muslims have caused us to suffer over 4000 deaths among our soldiers, tens of thousands of serious casualties among our soldiers, blow ballpark $3 trillion (net present value) of our money, and trash the Constitution. We've taken a sucker punch. We need to find some ways to get more security per unit of effort.

[graycat]

> I sincerely hope that the laws will get struck down, but I also fear that the classified nature of many things that touch this will lead the courts to say that we can't show we have standing, and therefore decline to rule on the constitutionality.

So, the Supreme Court will let claims of 'secrecy' trash the Constitution? I don't think so! The court should be able to find some ways around such claims of 'secrecy'! Telling those nine justices that they can't get 'secret' details promises not to 'play well'! The NSA is worried about tracking some loser, wacko, nutjob Jihader from Somalia, and the Supreme Court is worried about saving the US Constitution -- hmm ...!

> More importantly, what matters is NOT just what the laws say, but whether the government follows them!

If the executive branch is violating a law, bring a legal case. While this answer is simplistic, and usually is not an easy path, it is basically the way the process works. But such a case has to be brought and decided only once -- after that any judge can say that the issue has already been decided. While the process is not always easy, in important cases it tends to get followed. E.g., if the FBI goes to Google and says "gimme", Google can reply "see you in court". "Double secret probation" worked in the movie 'Animal House' but won't last long before the Supreme Court.

> What the King Does Is Legal

Not really true, but there is a lot of 'latitude'. And there can be a 'time window' until legal cases are brought. But the President is Commander in Chief so can tell the military to take that town. If the town is in the US, then there is a law about that. If the town is in another country, then the president should have some 'war powers', but the way it usually works in practice is that the president asks Congress for an authorizing vote. Then of course the president needs Congress to vote the money for the military action. And Congress can also pass a law that says that no money will be used to take the town in question -- in which case for the money the president has to run a bake sale, sell some arms and call up Colonel North, or some such. If the vote is 2/3rds in both houses, then it overrides any presidential veto and stands. So far the pushing and shoving from both ends of Pennsylvania Avenue have not gone beyond such things. E.g., in effect for Gulf War II, Congress voted some 'authorization' (I'm no expert with details), did vote the money, lots of money, often, and didn't vote "no money will be spent in Iraq" or any such thing. W didn't do Gulf War II by himself and, instead, had a lot of help from Congress; it wasn't all W's fault. Cheney's "There's no doubt that Saddam has WMD."? Well, if count chembio weapons, that was true. Why? Because we still had the receipts from when we shipped those materials to him when he was fighting Iran. I was 100% against Gulf War II, but it wasn't all W's fault; he had a lot of help, enough that at least the spirit of the Constitution was followed.

It's simple: Nearly all the power is in Congress, if they can get a sufficient majority to use it. But if Congress goes beyond the Constitution, then they can get slapped down by Supreme Court just across the street. We had some darned smart founding fathers: They were working to give up a lot of the power of the separate states to a central government and were darned careful about doing so.

Gitmo is a legal mess: (1) It's not in the US, deliberately so. (2) It's supposedly about what we are now calling 'prisoners of war'. Somehow a lot of people want to regard the prisoners in Gitmo as having the right to access the US legal system, but that's not so clear, and, indeed, how the US military handles 'justice' on the in times of 'war', or whatever we are calling the fight against Al Qaeda, etc., has long or always been a long way from the US domestic criminal legal system. E.g., the stories go that in Viet Nam, the US had four prisoners and wanted them to talk but they didn't want to talk. So, all four prisoners got a helicopter ride. From maybe 2000 feet up, the prisoners were asked one last time to talk. When they didn't, one prisoner went outside for a 'walk', from 2000 feet up. The story is that then usually the other three prisoners were willing to talk. The Geneva Convention may have something to say about such tactics, but I don't recall if the Geneva Convention applied in Viet Nam. Maybe Senator McCain (whom I rarely agree with -- he didn't actually sink a US aircraft carrier although he came close) can give some details on how the Geneva Convention applied in Viet Nam. I was very much against the US in Viet Nam soon after I heard General Maxwell Taylor speak and asked him a question and got his answer; but with the US military actually sent to Viet Nam, some of the details on just how they talked to prisoners I was less concerned about. Broadly just what the heck the US military does on battlefields is to me a bit far from the US Constitution here inside the US.

> This time around, the fact that it's being done by the NSA with the President's permission allows them to claim that the classified nature of nearly everything at stake here means we should trust them.

They can claim all kinds of stuff. E.g., they might claim that no kittens or puppies were harmed by the NSA. Fine. Irrelevant but fine. Similarly they might claim "you can trust us -- we love the US and work hard everyday to protect and defend the US and honor the laws and the Constitution" -- close to some things they actually said recently and about as relevant as not harming kittens and puppies. Instead, as we know well, very well, all too well, and as I am fully sure that all nine Supreme Court justices know with brilliant clarity,

"The price of liberty is eternal vigilance."

Besides, it's not up to General Alexander, the NSA, or President Obama to determine what is "constitutional". And it's not up to Senator Feinstein, etc. either. As we know well, instead, with a suitable case brought, the issue is up to the Supreme Court.

> Getting the laws overturned will be a HUGE first step

Shouldn't be. That's just the way the process is supposed to work. Congress and the president go with the excitement of the moment but eventually a case is brought to the Supreme Court and cooler, wiser heads prevail. In the meanwhile a General Alexander is able to say maybe that he loves America while he tracks mud over the First and Fourth Amendments.

Have some faith: The Constitution is fairly clear. The Supreme Court is highly respected. Nearly everyone in the US understands that the Federal Government is not supposed to be listening in on pillow talk, phone sex, steamy e-mails, or following people around, e.g., via cell phone towers, as they meet for their romantic engagements, etc. And the government is not supposed to be getting all that data, from Verizon, Google, Microsoft, or the Internet backbone even if the government does not use it. E.g., an ordinary phone wiretap takes a court order, and grabbing all the Internet traffic covers wiretaps, literally, and more. That no alligator clips and reel to reel tape recorders need be used is irrelevant -- grabbing voice over IP is the same as a wiretap; grabbing that data for 330 million US citizens within the US instead of just some one suspected Mafia thug is at least 330 million times worse and not better; and without a court order, in line with at least the Fourth Amendment grabbing all that data is just flatly illegal and unconstitutional.

Net, for the Supreme Court to strike down the laws that enabled a lot of what Snowden showed will be an easy slam dunk from a 10 foot stepladder. Telling the Supreme Court that they can't strike down such laws will be one of the most outrageously funny jokes ever cracked near DC. Take that claim and go down the present list of Supreme Court justices and guess who will even smile: Let's see, will Justice Scalia smile? He never smiles! Justice Ginsberg? She's so serious she can laugh and smile and no one believes it's genuine. Justices Sotomayor and Kagan? They are both busting their gut everyday to be sure no one can claim that they, as women, are not up to the full seriousness of the Court.

Trust in the founding fathers, the Supreme Court, and the Constitution. So far what the NSA did may be roughly 'legal' with current laws; that may not be the case much longer.

[makomk]

> So, the Supreme Court will let claims of 'secrecy' trash the Constitution?

They already have for decades, starting with United States v. Reynolds. That ship has well and truly sailed.

[graycat]

Then the court should revisit the case. They can do that, too.

[nknighthb]

They've had ample opportunity to do so. They turned down one just a few months ago, in fact. There is no reason to believe they will ever revisit it.

[graycat]

Generally the court will revisit an issue if there is a compelling reason from a new case someone brings. As far as I know, the court never revisits an issue without a compelling reason from a new case.

[flyinRyan]

Why would they? What do they care?

[graycat]

They will care if they are given a compelling reason to care from some new case someone brings.

The system is designed so that it's super tough for politics, etc. to cause the court not to care. It is likely true that the court wants to maintain a lot of respect from the citizens, but their level of respect is fairly high now.

If the court gets an opportunity to strike down some of the Patriot Act, etc. and wants to, then they likely have plenty of 'political capital' to do so. Indeed, one reason now to make a big stink in the public media, including HN, that what the NSA did violates the Fourth Amendment, etc. is to provide 'political capital' for the court to strike down the relevant laws.

My reading is that at the present time, US citizens are heavily on the side of keeping their phone calls, e-mail contents, Internet usage, etc. private instead of trashing the Constitution so that the NSA can try to catch another Boston bomber.

The way I have tried to put the issue is to say that the Constitution is a big part of what is worth protecting in the US so that it is logically impossible both to protect the US and trash the Constitution and, instead, we need to protect both the Constitution and the rest of the US. For this goal, maybe we need some better police work.

I have high confidence that we can protect both the US and the Constitution. If that view is popular in the US, then the court will have plenty of 'political capital' to protect the Constitution.

[flyinRyan]

>It is likely true that the court wants to maintain a lot of respect from the citizens, but their level of respect is fairly high now.

No it isn't likely true. It is likely true they want to make a lot of money. They don't care about the citizens, why would they? They have jobs for life.

>My reading is that at the present time, US citizens are heavily on the side of keeping their phone calls, e-mail contents, Internet usage, etc. private instead of trashing the Constitution so that the NSA can try to catch another Boston bomber.

And where on earth are you getting such a reading? By a large margin people are currently willing to let these breaches of privacy go on because they truly believe there is some global terrorist network out there bent on destroying them. I mean, even right here on HN the 4th amendment violations aren't globally seen as a bad thing.

This is one again a case of you imagining things to be how you wish they were as opposed to what actual evidence would tell you.

>The way I have tried to put the issue is to say that the Constitution is a big part of what is worth protecting in the US so that it is logically impossible both to protect the US and trash the Constitution and, instead, we need to protect both the Constitution and the rest of the US. For this goal, maybe we need some better police work.

The constitution has been shat on almost since before the ink dried. As soon as you have lawyers, you have people who are finding a way to interpret any law in a way favorable to their clients.

Outside of high school "American History" classes, the constitution isn't that big a deal. It's mostly just a handy extra piece of leverage for a branch of government to do something they wanted to do anyway. Had the constitution been in the way of their goals they would simply ignore it or try to interpret it in some more favorable way.