READER COMMENTS ON

"Federal Judge: NSA Phone Records Dragnet 'Likely Unconstitutional', 'Almost Orwellian'"

(14 Responses so far...)





COMMENT #1 [Permalink]

... David Lasagna said on 12/16/2013 @ 2:14 pm PT...





I am lovin' this! Thanks, Brad.

COMMENT #2 [Permalink]

... Alex said on 12/16/2013 @ 3:11 pm PT...





The only question is will we be able to be sure the NSA and other "intellegence" agencies are not doing what the courts and the Constitution say they are not supposed to do.

COMMENT #3 [Permalink]

... Brad Friedman said on 12/16/2013 @ 4:04 pm PT...





Alex - I guess we'll need another whistleblower to know that for sure, eh? In either case, Judge Leon stayed his own injunction, for the moment, pending the government's inevitable appeal. So, for now, the status quo spying on everyone will continue. Appeal is believed to take about six months, according to Charlie Savage at NYT.

COMMENT #4 [Permalink]

... Ernest A. Canning said on 12/16/2013 @ 5:26 pm PT...





There are several significant rulings made by Judge Leon in conjunction with this preliminary injunction. First, while Judge Leon ruled that he lacked jurisdiction to hear Klayman's Administrative Procedure Act claim, he did have jurisdiction to hear the constitutional challenge. If upheld, that, of itself is extraordinarily significant because it will give entities like EFF the ability to pursue such claims in what might aptly be referred the real courts (U.S. District Courts) as opposed to the Kangaroo Courts (FISA Courts) where the government is able to make a one-sided presentation without the adverse parties being present. Second, there were two preliminary injunction motions. The first motion concerned only the collection and analysis of phone records, and only with respect to Verizon. That motion was granted, albeit stayed. The second motion, which concerned collection and analysis of both phone and internet records, was denied. The court ruled that it need not address internet data surveillance because the government contends that such activity "was discontinued in 2011." The court's finding that Klayman had standing to challenge both the bulk collection and analysis was based upon facts, contained not only in the earlier FISA court decision, but supplied directly by the government in its legal filings, that distinguish this case from Clapper v. Amnesty Int'l USA, a Supreme Court decision that was handed down last June. It is likely that the government will appeal. That appeal would be heard by the DC Circuit Court of Appeal. It will interesting to see whether any of the Judges assigned to hear it will include those whose recent appointments were made possible only because of the change in the filibuster rules.

COMMENT #5 [Permalink]

... Ska-T said on 12/16/2013 @ 6:29 pm PT...





He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks. This sentence is disturbing to me. Whether or not an unconstitutional act is effective is irrelevant. The same rational is misused to justify torture, assassination (even of US citizens), and other heinous deeds. The ends do not justify the means!

COMMENT #6 [Permalink]

... Ernest A. Canning said on 12/17/2013 @ 7:53 am PT...





Re Ska-T @4: I believe you misunderstood why Judge Leon wrote: The government does not cite a single instance in which analysis of the NSA's bulk collection data collection activity actually stopped an imminent attack. Judge Leon did not make that statement because he felt the efficacy of the program would establish that an otherwise unconstitutional program constitutional. He did so simply to negate the government's argument that having all phone records under its control permitted the NSA increase the speed of its search for terrorists. While the effectiveness of a data collection process does not make an unreasonable search and seizure (here metadata collection) reasonable, the fact that the government cannot support its efficiency claims with respect to the purported justification --- heading off purported terrorist attacks --- adds weight to the plaintiff's assertion that the blanket metadata collection program is "unreasonable" within the meaning of the 4th Amendment.

COMMENT #7 [Permalink]

... Dredd said on 12/17/2013 @ 12:08 pm PT...





This was not the trial stage, it was the preliminary injunction stage, where the party seeking an injunction must show a "likely" win on the merits at trial. A judge must remain unbiased so Judge Leon indicated that he would "likely" find the facts supporting a holding that would be in the plaintiff's favor. It was not that he was unsure, it was that he was at a preliminary phase requiring informed speculation as to who would prevail on the merits.

COMMENT #8 [Permalink]

... Alex said on 12/17/2013 @ 4:34 pm PT...





Brad:

My purpose in bringing up the idea of not knowing if the "intelligence" establishment will follow the rulings of the judicial branch, is that, like the financial system, it seems that some government organizations are above the law and allowed to abuse/break laws and constitutional rights when it suits their purpose, or as SKA-T says "the ends justify the means".

When one of the officers of a major bank goes on trial for fraud or Cheney/Tenet goes on trial for crimes against humanity, then I will believe there is not a two (or more) tiered system of justice in this country.

Stopping the NSA from doing what it is doing would be great, holding people accountable so that they won't be as tempted to do so in the future would be better.

COMMENT #9 [Permalink]

... Dredd said on 12/19/2013 @ 8:38 am PT...





An expert panel supports shutting down the activity Judge Leon issued an injunction on.

COMMENT #10 [Permalink]

... Lora said on 12/19/2013 @ 12:57 pm PT...





Perhaps even scarier than the government spying on us... the whole Third Party concept. If the government must legally cease and desist (and as Alex pointed out above (#2), who knows if they will comply if ordered), what about corporate spying, with information to be sold to the highest bidder or used to what unknown purpose? Who is to stop and/or police them?

COMMENT #11 [Permalink]

... Irwin Mainway said on 12/20/2013 @ 7:46 am PT...





This was not the trial stage, it was the preliminary injunction stage, where the party seeking an injunction must show a "likely" win on the merits at trial. Stories such as these need to be very clear that about that fact. Too many readers on the web just browse the news and assume that it is a final decision, NSA lost. For example the ex-CIA chief James Woolsey did not call for "Edward Snowden to be hanged".

He very simply called for him to be tried for TREASON, a very reasonable wish, with the maximum penalty pointed out.

Add to the definition of 'Treason' - stealing all the security details of a nation and/or access codes to the power grid etc. Glenn is not "reporting on Snowden's leaks", he instead is RECEIVING the illegally disseminated classified material, a FELONY for Snowden. Glenn is now profiting off such at First Look Media.

COMMENT #12 [Permalink]

... Alex said on 12/20/2013 @ 10:16 am PT...





Irwin (#11), thank you for clarifying the status of the legal procedings.

"Treason" is a loaded word, Irwin. Depending on your point of view one might call it "treason" while others would call it exposing unconstitutional behavior protected by an overzealuos and highly secretive intelligence community as well as an enabaling Congress/Executive. I don't call that treason, I call Snowden's actions heoric. His actions may be a felony under current law, but if it exposes unconstitutional behavior, then the law stating that it is a felony is suspect at a minumum. Either the law should be eliminated or the rationale for what is considered (top) secret needs to be totally reworked, so that there can be more sunlight on the actions and behaviors of our intelligence community. People should not have to fear jail time or potentially hanging because overzealous individuals and agaecies are acting unconstitutionally and don't want to be found out. Those behaving unconstitutionally should be cowering in a corner hoping to not be found out, not using the Justice system to squelch the Boy Scouts among us who want to do the right thing.

COMMENT #13 [Permalink]

... Brad Friedman said on 12/20/2013 @ 11:30 am PT...





Irwin Mainway said @ 11: Stories such as these need to be very clear that about that fact. Too many readers on the web just browse the news and assume that it is a final decision, NSA lost. Well, for what it's worth, I think we were clear. Though there is always room for improvement, no doubt. So the input is always very much appreciated. That said, the NSA has "lost". This is a huge blow to them, no matter what is found in subsequent court action, as was the President's advisory board report that came out the next day. For example the ex-CIA chief James Woolsey did not call for "Edward Snowden to be hanged".

He very simply called for him to be tried for TREASON, a very reasonable wish, with the maximum penalty pointed out. Speaking of being "very clear" about certain facts. "TREASON" as you, and apparently Woolsey refer to it, is the only crime actually defined in the Constitution. It's definition is quite clear. It is not a "loaded word" as Alex suggested in his subsequent comment @ 12, nor does it "depend on your point of view", as he also suggested. So, in case either of you are unclear about it, let's all agree on facts before moving forward. This is from the legal definition of "Treason". aid and comfort refers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given. Under Article III, Section 3, of the Constitution, any person who levies war against the United States or adheres to its enemies by giving them Aid and Comfort has committed treason within the meaning of the Constitution. The termrefers to any act that manifests a betrayal of allegiance to the United States, such as furnishing enemies with arms, troops, transportation, shelter, or classified information. If a subversive act has any tendency to weaken the power of the United States to attack or resist its enemies, aid and comfort has been given. The Treason Clause applies only to disloyal acts committed during times of war. Acts of dis-loyalty during peacetime are not considered treasonous under the Constitution. Nor do acts of Espionage committed on behalf of an ally constitute treason. For example, julius and ethel rosenberg were convicted of espionage, in 1951, for helping the Soviet Union steal atomic secrets from the United States during World War II. The Rosenbergs were not tried for treason because the United States and the Soviet Union were allies during World War II. So, if Snowden committed "treason", would you be so kind as to name the "enemy" who we are at war with that he has given aid and comfort to? If you cannot, then your charge --- and Woolsey's (presuming he made it, haven't checked, he was head of FBI, so should know much better) --- is misleading, unclear, inaccurate and, frankly, inappropriate. You and Woolsey, certainly, should know that. Particularly since Snowden hasn't been charged with treason, much less found guilty of it. More from the legal definition of "treason": The crime of treason requires a traitorous intent. If a person unwittingly or unintentionally gives aid and comfort to an enemy of the United States during wartime, treason has not occurred. Similarly, a person who pursues a course of action that is intended to benefit the United States but mistakenly helps an enemy is not guilty of treason. Inadvertent disloyalty is never punishable as treason, no matter how much damage the United States suffers. Okay. So let's pretend we are at war with someone and that Snowden gave "aid and comfort" to them. (I'll let you tell me who that may be, as mentioned previously.) If he did, are you suggesting he had a "traitorous intent"? That he was hoping to be traitorous, rather than carrying out an "action that is intended to benefit the United States"? If so, are you able to offer even a scintilla of evidence for that charge? If not, you should be very clear when using words such as "treason", since, to paraphrase you, "many readers on the web just browse the news and assume that" statements such as 'Snowden committed treason' has anything in relationship to the truth. It doesn't. You also wrote: Add to the definition of 'Treason' - stealing all the security details of a nation and/or access codes to the power grid etc. No. Sorry. You can't just "add to the definition" of words that you don't seem to understand the actual definition for in the first place. And here's one last part of the legal definition of "treason": Treason is punishable by death. Are you saying Snowden should face the potential of being killed by the United States in the course of a trial for "treason"? Really? (For a well-defined crime, mind you, that the information above should make clear that he has not committed --- but I look forward to your answers to my questions, in any case.) Glenn is not "reporting on Snowden's leaks", he instead is RECEIVING the illegally disseminated classified material, a FELONY for Snowden. Glenn is now profiting off such... Glenn is doing what most of us in the journalist business describe as "journalism". And damned good, Pulitzer Prize-worthy journalism at that. If you are unclear on the definition of "journalism", let me know, and I can continue this lecture in a follow-up comment on that.

COMMENT #14 [Permalink]

... Irwin Mainway said on 12/20/2013 @ 5:44 pm PT...

