Re: Spy Agency Mined Vast Data Trove

[coderman <coderman () gmail com>]

On 12/27/05, Paul Schmehl <pauls () utdallas edu> wrote:
> ...
> Well, no, they are not "clearly illegal".  That is a matter of opinion and
> not law.

you are both correct to some degree.  as an unsatisfying but
appropriate conclusion consider that the interpretation of the law by
a judge / jury must consider intent and actions.

while a 'dragnet' style 'detection' network may not clearly fit the
model of surveillance relevant to and overseen by the FISA court, it
is much more clear that the actions and intents of the administration
are less clear cut.

i think bush's quote about that annoying document he swore to uphold
being nothing more than 'a goddamn piece of paper' shows the
disposition of this administration as openly capricious / thoughtless
where privacy and/or essential freedoms are concerned.


>  In fact, all legal precedents indicate that the program is legal,
> within the purview of the President's powers under Article II of the
> Constitution.

but only if the dragnet itself is legal.  side stepping FISA is not
permissible if the FISA court is intended to oversee a program of the
nature pursued by the NSA / other agencies at the continued and
repeated request of the administration.  a judge will have to
determine this (if it comes to such).


> You are aware that Lincoln suspended habeas corpus during the Civil War?
> Many people were outraged and insisted it was "clearly illegal", yet
> Article I, Section 9 states that habeas corpus cannot be suspended *except*
> in times of rebellion or invasion.  So Lincoln's actions were
> Constitutional.

this is not really relevant to the particular questions in this case
and you know it.


> Just because you don't like something your government does doesn't make it
> illegal.

and just because we are at war the rule of law does not dissipate.


> > The 1st Amendment also applies, in that free speech can also be private,
> > with unauthorized others excluded, for whatever reason, and/or
> > anonymous. If government intrudes, it has an unwarranted chilling effect.
> Really?  Where in the First Amendment does it mention "private" speech?

indeed; privacy is a difficult subject wrt the bill of rights.  it's
not nearly as well defined and protected as you imply.  but that
doesn't mean there is no right to privacy either...

in any case, the pissed off federal judiciary is not a good sign for
bush or the administration.  some toes have been stepped on and there
will be some kind of fallout (though perhaps minimal...)
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