Thursday, May 7, 2015

ACLU vs. Clapper, Alexander, Hagel, Holder, and Mueller - 13

The U.S. Court of Appeals for the Second Circuit has ruled that NSA spying on Americans is illegal (ACLU v. Clapper).

The court chose to rule on the statutory  side of the equation, as the Supreme Court has directed in the past ("don't rule on constitutional issues when you can resolve the case on a statutory basis" - paraphrased).

The court wrote: "The district court held that § 215 of the PATRIOT Act impliedly precludes judicial review; that plaintiffs‐appellants’ statutory claims regarding the scope of § 215 would in any event fail on the merits; and that § 215 does not violate the Fourth or First Amendments to the United States Constitution.  We disagree in part, and hold that § 215 and the statutory scheme to which it relates do not preclude judicial review, and that the bulk telephone metadata program is not authorized by § 215.  We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion. VACATED AND REMANDED." (emphasis added)

I have been covering this case for a long time:
NOTE: the court also ordered that the caption be changed, because the only one still in office now is: James "I told the least biggest lie under oath" Clapper.


UPDATE: The usually right-wing House of Representatives is on the same page as the court on this issue (House rejects NSA collection of phone records with vote to reform spy agency).

The previous post in this series is here.


  1. Two points: a) It's about time.
    b) Most of the work these spy agencies do is illegal, so what's to stop
    them from continuing?

    1. Your "b)" ended with a question mark, so I assume it was a question.

      The answer, likewise, is not shallow:
      "This was illustrated, as the book points out, when scientist Cliff Stoll called the NSA for help:

      "Cliff, I'd like to take over, but our charter prevents it. NSA can't engage in domestic monitoring, even if we're asked. That's prison term stuff." He took this seriously.

      (The Cuckoo's Egg, by Clifford Stoll, page 87 PDF, emphasis added). The NSA agent told him, circa 1986-87, that if an NSA agent did monitoring of U.S. citizens in the U.S. they would be violating criminal laws and would go to prison for it.

      (A Tale of Coup Cities - 4).

      The shallow coup makes the news because it is McQuick and McDirty so that even luddite journalists grasp it for an hour or so ("MahHetmer Zooman overthrows Dorksville's King Bamboozle, killing all his imprisoned relatives" - AP).

      To the contrary, the deep coup takes place underground, just outside the vision range of the news luddite.

      So, in order to investigate a deep coup, a meticulous effort (while paying attention to relevant policy shifts) has to take place in order to detect it (ground penetrating radar).

      In that series I linked to above ("A Tale of Coup Cities"), I quote, among many others, a General who once commanded NATO forces.

      He is quoted as saying:

      "What happened in 9/11 is we didn't have a strategy. We didn't have bipartisan agreement. We didn't have American understanding of it. And we had instead a policy coup in this country, a coup, a policy coup.

      Some hard nosed people took over American policy and they never bothered to inform the rest of us

      As a result of "the policy coup," the NSA went from too timid to illegally observe even one American, to illegally observing all Americans.

      There are lots of examples in that series.

      So, the answer is: "enforcing constitutional policies."

      Thus, the "what's the use" attitude goes first, then the bad policy goes afterwards.

      Or, to the contrary, the "what's the use" attitude remains, along with the bad policy.

      The "what's the use" death spiral is a tenet of the Groundhog Day Religion.

    2. Yeah, glad i didn't ask "what's the use?"!

      What i asked has to do with enforcement, which doesn't look like anyone in power is very serious about when compared to those 'terrists' that are lurking behind every billboard and tv set. i like the answer you gave - but who, exactly, does this enforcement?

      Thanks for your response, Dredd.


    3. Tom,

      You wrote: "What i asked has to do with enforcement ..."

      What I answered did too.

      The NSA once regulated itself with self-enforced obedience to the law of our land.

      It is just that things change ("I used to care, but things have changed" - Bob Dylan).

      A civilization being born is different from a civilization that is dying.

      Like Dylan wrote: "he not busy being born is busy dying"

  2. Congressional reaction is helter skelter (link).