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1 Heywood Jabloeme  Fri, Jul 5, 2013 4:45:36pm

Oh come on. Let’s get more of those “-1” votes against reality.

And maybe, you could exhibit some cohones at the same time and leave a comment as to why it isn’t true?

Of, just be like the RedStaters and live unburdened in your own little reality.

PS - this material is all shared with producers on many of the MSNBC shows so if they visit the site, they get to witness you covering your ears and shouting “nanaananana” you don’t like hearing something!

2 Charles Johnson  Fri, Jul 5, 2013 5:04:41pm

Sigh.

3 Randall Gross  Fri, Jul 5, 2013 6:44:43pm

If you don’t like the NSA processes and extradinary powers, and the way the law works, why are you blaming Obama? Seems like a pretty petty and childish approach to politics, divorced from reality and realpolitik. If you want it changed then you better go after congress, not the president. As your post points out this is what two presidents from completely different parties and backgrounds have done. They’ve done it because that’s what the law currently requires.

4 Heywood Jabloeme  Fri, Jul 5, 2013 8:38:29pm

Randall Gross - Do you see the photo of Sen Wyden above opposing Obama on this? Place 23 other Democratic Senators there and you would have the start of the Congress opposing him on this. Then, like DOMA, do you think that he will refuse to defend the law as it is brought to teh supreme court? Take a look at the facts. If you would actually read the articles instead of blindly comment you might learn something. Obama himself as TWICE extended these controversial provisions of the Patriot Act and the last time, he (didn’t) sign it, in the middle of the night, with a robo signer.

I only edited the post above and inserted the photos to illustrate the situaion and highlight the reality of it. There is nothing petty here, the real politic is what I presented. Obama is siding with NeoCons and Security State Pols against people like Wyden and others. They are ACTIVELY opposing him.

I’ll tell you the real politic here - Charles has done a workman’s job of highligthing the weaknesses and pettyness of Snowden and Greenwald. The ACLU, 24 Dem Senators, the WaPo, NYT and the Atlantic are on the path of destroying Obama’s credibility on this subject to the point at which it will be lower thn Snowden and Greenwald’s.

They have both been more truthful than he.

5 Heywood Jabloeme  Fri, Jul 5, 2013 8:42:27pm

“A bipartisan group of 26 senators is pressing the director of national intelligence to shed more light on the scope of a controversial surveillance program to collect the phone records of tens of millions of Americans with no connection to wrongdoing.

In a letter Friday, the group, led by Sen. Ron Wyden (D-Ore.), said that the bulk collection program under Section 215 of the Patriot Act “raises serious civil liberties concerns and all but removes the public from an informed national security and civil liberty debate.”

The current program, whose existence and evolution was revealed in recent weeks following disclosures of top-secret documents obtained by The Washington Post and the British newspaper the Guardian, was authorized by a federal surveillance court in 2006 under an interpretation of the law that remains secret. Civil liberties groups and lawmakers have pressed for declassification of the court opinion.”

articles.washingtonpost.com

The Obama adminstration is on record as opposing this tranparency.

6 Heywood Jabloeme  Fri, Jul 5, 2013 8:44:21pm

So, in my first comment I challenged anyone to contradict any facts here and after a few posts I find you lacking.

Anyone want to step up?

7 HSG  Fri, Jul 5, 2013 8:51:44pm

The ACLU is a fine organization, but one must never lose sight of the fact they’re a group of lawyers. Lawyers are in the business of making their case in the media for a public that’s largely ignorant of the law. So they will make grandiose and optimistic predictions and then act like those are now carved in stone. An unknowing public will clap and cheer and think the matter has been decided.

Once their suit gets to court, it becomes a far different story. The ACLU has some substantial and likely impossible federal precedent working against them that sets up nearly unreachable hurdles.

First, there’s Clapper v. Amnesty International, a US Supreme Court case from earlier this year where a suit much like the ACLU’s was tossed on standing grounds. The ACLU has the same standing problems, and the Supreme Court’s more recent Hollingsworth v. Perry decision established particularly emphatic standing parameters that further erode the ACLU’s case.

Then there’s the whole rather massive Fourth Amendment precedent going against them. In cases like US v. Miller and Smith v. Maryland, the Supreme Court established very clear third party parameters that it has shown no sign of dismantling.

The Supreme Court has stated: “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

Yet the ACLU will try to argue that the Fourth Amendment does prohibit the obtaining of information revealed to a third party.

What could well happen is that the ACLU will reach the appellate level with the case then going against them. The Supreme Court will decline review and the appellant decision will stand as precedent. It has a tendency to do that whenever someone like the ACLU demands Supreme Court review. They are like cats who cannot be herded and will immediately become contrarian the moment they think someone is trying to herd them.

8 bratwurst  Fri, Jul 5, 2013 9:32:12pm

re: #6 Heywood Jabloeme

So, in my first comment I challenged anyone to contradict any facts here and after a few posts I find you lacking.

Anyone want to step up?

All of my downdings are strictly for obnoxious whining.

9 Heywood Jabloeme  Fri, Jul 5, 2013 10:08:05pm

HSG - So this changes NOTHING from the post. You frame this as the ACLU against Obama, Bush, Cheney, etc etc.

This is 24 Democratic Senators against Obama. This is the WaPo, Atlantic etc etc against Obama.

So if it does end up as you said it also ends up like the Politico article points out and my post simply AMPLIFIES - Obama, Bush, Cheney, Hayden and all the other Neocons you wish to name, win. Nice crowd huh? Looks good on your legacy huh?

You also for get to mention the latest 4th Amendment case United States v Jones. Here SCOTUS extended 4th Amendment protections to a convicted drug dealer. So, no matter how the Obama adminstration spins it, as they argue the ACLU case, their arguement will simply be, “Do not extend the same 4th Amendment protections to US citizens in general as you do to criminal inverstigations in particular”.

Also, the power that Metadata analysis brings to the collection of this data has never been litigated.

You also wrote, “First, there’s Clapper v. Amnesty International, a US Supreme Court case from earlier this year where a suit much like the ACLU’s was tossed on standing grounds. The ACLU has the same standing problems”. Which is not true. The ACLU clearly has standing since they are customers of Sprint (?) and the leaked Warrants clearly show the gathering of thier phone activity. Which is why the ACLU is now so eager to bring this case because it the past there as the absurd Catch 22 situation - the laws and activities were secret so you couldn’t prove standing. Snowden’s leaks blew that out of the water.

So, the law is constructed so that citizens can’t test the legaility of the law due to its secrecy. Sounds nice huh? How comfortable do you think that SCOTUS will feel not even addressing this concern now that “we” know about it? Is there any bigger threat to a Judicial System than the idea that certain laws are so important that the laws themselves can be written so that they are beyond Judicial review?

In Marbury v Madison the precedent was set where the Supreme Court was the final arbiter of the constitutionality of a law. Now, the Patriot Act and the FISA Court statutes are set up so that they can never be reviewed by SCOTUS because no one is ever suposed to have standing?

Hypothetical - To prevent voter fraud in the great state of Utopia a law is passed that all future elections will use a special ballot system. It is a secret ballot in that no one knows who votes are evern if you voted. And to prevent voter fraud the details of the law is secrect and thus it is against the law to know anything about it. A secret court is set up to count the ballots but only the results are ever known.

Nice and tidy huh? How does one ever pass the threshold of standing to challenge it in court unless the principle that a law cannot be designed so that someone’s standing to challenge the law isn’t also denied by law.

SCOTUS reached down to pick the Jones v United States for a hearing against all conventional wisdom then unanimously decided, but split on the opinion, to apply a 4th Amendment protection where it had never been extended to before. In the end, I think a plausible arguement can be made that SCOTUS will stick to precedent and not upend the Patriot Act and FISA but I don’t think that there is any chance that they will let stand a situation where they are at least given the opportunity to do what is their purpose - review a law.

10 Heywood Jabloeme  Fri, Jul 5, 2013 10:22:00pm

Also lets look to see which Justices are the deciding majortity in the most recent case that you cited.

Clapper v. Amnesty International - Majoirity Alito, joined by Roberts, Scalia, Kennedy, Thomas

So, in order to win this ACLU case if it went to SCOTUS, the Obama Adminstration would probably have to depend on a 5-4 decision with those 5 on his side. Nice.

I’ll amend my post to include thier 5 photos to be on “his team”. His legacy is looking better as we go along.

11 HSG  Fri, Jul 5, 2013 10:56:45pm

United States v. Jones is not relevant here. It’s an exclusionary rule case, and the ACLU is not moving to have evidence dismissed. That’s comparing apples and oranges. It’s not any kind of barometer for the third-party issues raised in the NSA matter. The Politico article tries to do that, but that’s flat out silly — as silly as the ACA predictions the media made before that case was decided, which were largely wrong.

Constitutional law is not like handicapping the Oscars, although the linked article tries to do that. Because another Fourth Amendment case, dealing with largely unrelated issues, came down a particular way is not somehow magically indicative of how this case will end. That completely ignores the stare decisis.

And you either didn’t read Clapper or don’t understand it. You’re raising essentially the same standing arguments regarding Verizon etc. that failed in Clapper. (Note that you incorrectly state they are Sprint customers.) Politico tries and fails to make the same point that this somehow is different than Clapper. That also overlooks how the Supreme Court usually eschews a case that is substantially similar to a very recent one.

The Politico piece was published before the “generalized grievance” standing precedent re-articulated in Hollingsworth v. Perry: “A litigant must demonstrate a personal and tangible harm throughout all stages of litigation.”

Hollingsworth buttresses Clapper on the standing issue, as do many other cases. The ACLU has a harder case to make than Amnesty International did in their very similar action.

Orin Kerr makes a very good point in the linked article and arguably he’s the most on-point expert here.

In closing, you’re confusing facts here with conjecture. You state “I challenged anyone to contradict any facts here” but I see very few actual facts and a great deal of speculation. You’re making a prediction that’s substantially similar to a sloppily constructed and somewhat slanted three-week-old article and that’s somehow conclusive?

12 goddamnedfrank  Fri, Jul 5, 2013 11:06:31pm
SPIEGEL has decided not to publish details it has seen about secret operations that could endanger the lives of NSA workers.”

The above quote is from a German magazine confirming today that some of the information Snowden released to them poses a real risk to the lives of specific individuals and that they will not publish it. Thank God he put it in the responsible hands of the Russian and Chinese governments, exemplars of free speech and civil rights that they are. If you disagree just ask Pussy Riot or Li Wangyang, oh yeah, you can’t. Most mainland Chinese have never seen the Tiennanmen Tank Man photograph and this week Putin signed a bill into law making it illegal to acknowledge to children that gay people even exist. So far these stand up governments are the primary beneficiaries of Snowden’s largesse, because honestly if we as Americans didn’t know what was going on it was only out of sheer denial, and an inability to acknowledege the fact that we demanded it.

Anyways, I’m intrigued by this new definition of “privacy” wherein all the data that people willingly hand over to multinational telecoms to be sold to international marketing conglomerates is somehow still a “secret.” I get that almost nobody reads the Terms of Service for their cellphone plans and online social media like this one, but it’s incredibly naive to think that all that metadata belongs to the individual. We handed it over gladly in the name of creature comfort, 24 hour access to adorable cat videos and the ability to send selfies to all our “friends.” So instead of giving in to a knee jerk need to blame the same government that couldn’t gather enough data or act swiftly and decisively enough for our collective tastes after the Boston Marathon bombing, maybe we should look to our own role in creating the current state of affairs. We are after all ostensibly still some species of democracy, bitching is easy, introspection is hard.

Which isn’t to say that there aren’t some rather obvious flaws with the Patriot Act and the FISA courts, clearly there are. The most glaring being the apparent total lack of any opposing counsel at FISA hearings, no devil’s advocate, so therefore nobody to appeal a secret ruling and thus effectively no higher court of review. If you weren’t aware of this structural problem before Snowden then you weren’t paying attention, and praising him for bringing that issue to light ignores all the damage he done not only to the country but to the worldwide civil rights movement by painting some of the world’s worst malefactors as havens.

Something needs to be done about how the FISA courts operate, something more effective than lionizing a treacherous fool who put national security methods and practices into the hands of two of our most powerful geopolitical adversaries. I won’t shed a tear for the Patriot Act if and when it’s repealed, and it should be repealed or at least heavily modified, but by a democracy acting in the clear expressed desires of its citizens, which is predicated on us as citizens sending clear, unambiguous messages to our representatives. As long as we panic easily or place our faith and secrecy in the hands of corporations while hating the government that we elect that’s not going to happen. You get the government that you deserve, and you can’t simply decide that you deserve something better, you actually have to put the work in to deserve it.

13 Decatur Deb  Fri, Jul 5, 2013 11:09:49pm

The only people qualified to talk about the workings of the law in depth are lawyers. When lawyers talk about the law they tend to get boring, fast.

The only people qualified to talk about the workings of the intelligence community in depth are in the intelligence community. When people in the intelligence community talk about the intelligence community outside a cone of silence, they are not people in the intelligence community.

14 Heywood Jabloeme  Fri, Jul 5, 2013 11:50:38pm

HSG - From the article - “The suit filed Tuesday argues that the phone-tracking system detailed in The Guardian violates freedom of speech and privacy rights, with the ACLU arguing on its own behalf as a Verizon customer. The group wants the National Security Agency’s surveillance program stopped and all its records to be purged.”

“For one, among the documents published by The Guardian is a court order that indicates that the NSA is obtaining daily call data from Verizon Business Network Services, a division of Verizon of which the ACLU says it is a customer. “There’s already a court order that’s been disclosed,” Toomey said.

And since “the ACLU is a Verizon customer … we really do think that the privacy interest in this case is the ACLU’s, not Verizon’s. It’s the ACLU’s rights that have been invaded.”

Vladeck also sees the courts getting to the merits of the case. “No court could find with a straight face that the ACLU as a Verizon customer wasn’t affected by this order,” he said.

In addition, lawyers agree with the ACLU’s view that it will be able to use the leaked order in court proceedings for the new suit.”

My bad when I said Sprint it was Verizon.

Next, if you read the leaked court order, which I and many have, it is obvious that in is but one in a sequential rolling stream of Warrants that is intended to include ALL Verizon data from the start date until at least the date of the leaked Warrant. And it is broad and non-specific to include every phone call handled by Verizon’s networks over that period of time.

I have read credible leagal opinions that say that they have never seen nor heard of such Warrants before - totally without precident. So the 4th Amendment argument against them is, “How can a law require a Warrant that isn’t a Warrant?”. All precedents for Warrants are for an indivdual, or group of individuals, for whom investigators can produce probable cause that they have committed a crime. The ACLU will claim that their call records were gathered and there was no probable cause.

As far as US v Jones it is also specifically cited in the article as well.

” . . the court ruled in 2012 that the government could not track a suspect using a GPS device attached to his car without getting a warrant, . . “

It is obvious that your legal knowldge is much superior to mine but it seems that others with at least as much disagree. In my post I only cited information from this article. And that is not really the point of my post. I simply pointed out what the results of what this case will be so that if your analysis is correct tnat is the WORST case for Obama. He wins and on his side are Bush, Cheney et al. The losers; the ACLU and at least 24 Democratic US Senators. And that is only to date. Then look at the process required to win the case. in the article that mention what we become known through discovery. Then they mention what Administration Officials have and will have to say to manage the politics of the sitauation. Then, look to whom on SCOTUS he will probably have to depend upon for that victory - 5 judges he just said helped to strick down a portion of a law that garanteed a basic right, to vote.

15 Heywood Jabloeme  Fri, Jul 5, 2013 11:51:53pm

You are arguing the law here. Many other experts in the article, and in other sources argue with and against you. The point of my post is that even if Obama wins it is a Pyyric Victory and classic No-Win situation. In fighting and winning, he sides with others opposed to him on many other principles, he must make arguments abhorrent to his basic principles, he exposes more information about a program that can only become less popular the more people know about it and easier to legally fight against as that information becomes known and becomes ever more associated with a process that will go down in history as shameful.

Many here “shoot the messenger” when they criticize me and this post yet they offer absolutely no criticism to the facts.

PS - I added the photos of Obama 5 new “buddies” on SCOTUS that he will probably have to depend upon for his “victory” and I gave you credit.

Politics makes for strange bed fellows and Obama has some very strange ones indeed for this one.

16 Randall Gross  Sat, Jul 6, 2013 12:49:29pm

No president is going to deny the NSA the full use of their legal powers while we are still under even small chances of foreign terror attacks. It’s just not going to happen - if Congress does not change the legislation then the next president regardless of philosophy, moral viewpoint, or party will still be using this.

It’s not going to be easy to get congress to change the laws because they don’t want to eliminate the powers and then have a major attack happen either. Realpolitik, look it up Winston.

In congress they have more cover than the president does however, and that’s the place where these extraordinary powers will eventually get removed.

17 Heywood Jabloeme  Sun, Jul 7, 2013 11:06:01am

Randall - read the article and others. The US Govt only eliminated one program when Wyden and other Democratic Senators pointed out that it wasn’t working i.e. didn’t do squat. And there are numerous articles pointing out that, contrary to claims by US Officials, these don’t work either.

I love it when people take sweeping claims for granted. When growing up I went to church and people said, “There was a Garden of Eden and a Great Flood” and when I asked, “How do they know?” they replied, “because God said so”.

So I ask, besides empty statements from US Govt employees who have already demonstratedly lied to us and before that hid behind viels of secrecy, that makes claims that thuis is protecting us, what proof do we have? And I I said above, there are various detailed analysis by very credible people that show that they do not.

Then, you point about going forward is completely true unless whitle blowers like Snowden get enough information public to allow a full SCOTUS review and even then, with the make-up of SCOTUS, it is doubtfull that they will do anything.

So agree with your (unstated) opinion - Obama is very comfortable maintaining a series of Domestic Spying Programs with dubious effectiveness based on shoddy constituional law and backed up by creepy a SCOTUS majority and without his leadership, a Constitutional Law Professor and African American, we will be stuck with these blantant intrusions into our civil rights for years, in not forever.

18 Gus  Mon, Jul 8, 2013 8:20:21pm

Shark. Jumped.


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