Author Of Torture Memo Says Judges Are Too Out Of Touch To Determine If NSA Violated The 4th Amendment
from the well-that's-insane dept
John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA's activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn't have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA's bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is... not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that's the job of Congress, not the courts.In fact, I do not think that this is fundamentally the job of judges. It may be time to reconceive the rules of search and seizure in light of new Internet technologies — but that is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people. Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs. The president and Congress must take up their duty and work out the rules to govern surveillance to protect the nation’s security, and when they don’t, it is left up to the branch least capable of doing so, the judiciary.There seems to be no basis for this other than that Yoo believes it to be the case. Courts have always had the role of determining whether or not the actions were unconstitutional. The idea that only "national security" and "foreign affairs" insiders can determine the rules is a recipe for massive regulatory capture by surveillance extremists like Yoo.
Yoo is also embarrassingly misstating Judge Leon's ruling. He insists that, despite pages of detailed reasoning, Leon cannot claim that the outdated ruling in Maryland v. Smith doesn't apply here:
Judge Leon cannot claim that the reasoning of Smith does not cover the telephone metadata at issue here, because the data collected are exactly the same as the kind held unprotected in Smith. Leon’s decision instead argues that technology has changed so much that Smith is no longer good law.That's clearly not what Judge Leon ruled, and Yoo is being blatantly intellectually dishonest here. Leon noted that Smith covered a very specific legal question, and the legal question here is different. And part of the difference in the question involves collecting a single piece of information on a single person, as opposed to collecting all information on everyone and continuing to collect that information forever. As Judge Leon rightly noted, that's an entirely different issue than was tackled in Smith. That's not saying Smith itself is no longer good law (though it isn't), but rather that the situations are vastly different. I can't see how anyone can reasonably argue otherwise. Collecting a single piece of information on a single person is incredibly different than hoovering up all information on everyone.
It's no surprise to see the NSA's loudest apologists grasping at straws over all of this, but, really they might want to give it a rest for a bit, because their arguments are looking more and more desperate and less and less intelligent.
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Filed Under: 4th amendment, john yoo, judges, nsa, richard leon, surveillance
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John Yoo
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Re: John Yoo
Political parties are an unavoidable? blight on democratic societies that drive power to one or two oligarchies.
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Re: John Yoo
He must be a liberal socialist if he keeps defending the NSA instead of working to undo its excesses.
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"OMG! somebody is calling out my BS, this will look bad how can I do something to counter this and make me look good again?"
Call it a feeling, intuition or whatever but when I see anyone using blatantly stupid reasoning to defend the indefensible that is what comes to my mind, maybe I am an old dog trained to sniff out BS in this way, but never the less this is what it looks like to me.
Congress is not the only one that has the authority to define what the constitution says, it is a shared job between the 3 powers(executive, legislative and judiciary) but maybe things changed, how is the power system currently explained in schools?
The one point I do agree is that the judiciary is to insulated and that can be frustrating at times.
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Who to trust?
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Actually, it's specifically reserved to The People by the 4th Amendment.
Even if Mike is absolutely right about problems, he has no solutions to even suggest.
12:01:54[n-2-0]
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Am I missing something here?
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Re: Am I missing something here?
The reason that he's getting press time now is basically the same reason. The administration needs a legal opinion to justify what they've been doing, and they can't find a good lawyer to provide one. If the administration could get legal defenses out of someone whose career wasn't tainted by misconduct, who was capable of writing intelligible legal opinions, and who wasn't under investigation for war crimes in multiple countries, the administration would do it. They presumably can't, which is why they're using Yoo again.
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Re: Re: Am I missing something here?
However, the most obvious one to me is that, according to Yoo, when it comes to the judicial branch (to quote Boss Tweed in GoNY) "the appearance of the law must be upheld - especially when it's being broken" -- so, by deflecting the responsibility of interpreting the law to the corrupt legislative branch the illusion is more easily perpetrated
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Mr. Yoo is simply taking a play directly out of Mohamed Morsi's playbook, and we all know how well that ended up for him...
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Standing in line at the supermarket to pay for my groceries takes too long. Maybe I should just be allowed to walk out with them...
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Yoo is one of the great examples of...
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This sort of data collection was never an approved method of gathering data even back when the Constitution was being drawn up. It states specifically that a person will be secure with their private data (read papers and communications) at a time when the internet was never envisioned. It is the intent here that is the important driving factor and that intent has been trampled over by all the legal authorities with the hope that the public will never challenge it if they can make that challenge difficult enough.
This making the challenge difficult enough is why the constant claiming of no legal standing, of claiming national security, and of hiding things like the interpretation of how they are drawing authorization. It is to prevent challenges to their methods, which once allowed in court to be ruled on, could take down their house of cards. Their problem has been going to the well to often over national security and claiming it's needed to fight terrorism.
Obama and the NSA are constantly claiming that these actions are to make American and it's citizens safe. There is no mention in the Constitution of making people safe. You have no guarantee of safety in life. You can die tomorrow in your sleep or even getting out of bed. No government agency can prevent the fates if you believe in that sort of thing. The idea that it is needed for making the nation safe is a strawman when you see where they are going for their data. The data is needed to identify the enemy and the American public is viewed as the enemy in this case.
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IP Laws
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Circular logic
1.) The argument that the advent of internet technology requires that privacy rules and the prohibition on search and seizures without a warrant showing probably cause is completely insane. The amendments were written in plain language for even the illiterate of the time to understand. When the 4th amendment lists persons, places, effects, its attempting to list all forms of surveillance that were possible at the time. The point was to say we are free autonomous beings and the state will not intervene either directly or indirectly in our lives without cause. To say they would ban all contemporary forms of surveillance but would not have thought to ban big data surveillance if it existed at the time is preposterous. Why would they think we had privacy rights in clumsy surveillance, but not in 1984 style efficiency? Why do we lose our expectation of privacy because the capability to violate that privacy has grown. Its illogical.
The second point he brings up is the congress should determine what is a reasonable expectation of privacy. Here he implies that what is reasonable can change, and seems to provide the mechanism for changing it. Effectively he is arguing that because the government has been doing this for a decade in secret, but lots of people long suspected it but couldn't get courts to rule on it, we cannot reasonable expect our internet to be private since we all know (wink wink) its being monitored. So, if the government wants to erode the 4th amendment, they just have to do so insecret to block judicial scrutiny, hint to the press about what is going on for years until many people accept it out of powerlessness, and then declassify it and state its constitutional because it stopped being reasonable to expect that info to be private 5 years earlier. It's circular logic.
The final interesting point that he doesn't raise, but others do, is the claim that we lose our privacy when information is put into a 3rd party hand in the internet age. So in the horse and buggy age, does this mean the government could read all letters unless they were delivered by the author to the recipient directly. If a courier was hired then it was all fair game? Again, these arguments are intellectually insulting, and the reason most people don't realize it, is because we are only hearing these people's voices. They can lie without challenge, and commit crimes with impunity. A sad time in America.
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The part I've bolded pretty much says everything that needs to be said about his opinions.
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Excuse me..
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If I recall right...
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Determining society's expectation of privacy
That's like saying only a committee can determine the color of the sky. The public's expectation of privacy is whatever particular members of the public happen to expect, while reasonableness depends upon the particular circumstances involved. You can't determine this by fiat. You can only determine it by analysis.
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Surely this is Onionesque satire...
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Yoo aren't very convincing, Mr Yoo
Here's hoping that the government lawyers do no better on appeal.
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Re: Yoo aren't very convincing, Mr Yoo
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John Yoo
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