Court Nixes National Security Letter Gag Provision 128
2phar sends news that on Monday a federal appeals court ruled unconstitutional the gag provision of the Patriot Act's National Security Letters. Until the ruling, recipients of NSLs were legally forbidden from speaking out. "The appeals court invalidated parts of the statute that wrongly placed the burden on NSL recipients to initiate judicial review of gag orders, holding that the government has the burden to go to court and justify silencing NSL recipients. The appeals court also invalidated parts of the statute that narrowly limited judicial review of the gag orders — provisions that required the courts to treat the government's claims about the need for secrecy as conclusive and required the courts to defer entirely to the executive branch." Update: 12/16 22:26 GMT by KD : Julian Sanchez, Washington Editor for Ars Technica, sent this cautionary note: "Both the item on yesterday's National Security Letter ruling and the RawStory article to which it links are somewhat misleading. It remains the case that ISPs served with an NSL are forbidden from speaking out; the difference is that under the ruling it will be somewhat easier for the ISPs to challenge that gag order, and the government will have to do a little bit more to persuade a court to maintain the gag when it is challenged. But despite what the ACLU's press releases imply, this is really not a 'victory' for them, or at least only a very minor one. Relative to the decision the government was appealing, it would make at least as much sense to call it a victory for the government. The lower court had struck down the NSL provisions of the PATRIOT Act entirely. This ruling left both the NSL statute and the gag order in place, but made oversight slightly stricter. If you look back at the hearings from this summer, you'll see that most of the new ruling involves the court making all the minor adjustments that the government had urged them to make, and which the ACLU had urged them to reject as inadequate."
Wow... (Score:5, Insightful)
Re:no kidding. (Score:5, Insightful)
Now, 250 million Americans should be writing to the Obama organization and asking why the fuck it was allowed in the first place and what is HE going to do about it... in the next 12 months, not how will he leave it to the next election.
great news (Score:5, Insightful)
Well, congratulations America.
It is very nice to see a resurgence of freedom in your country.
The question/task for the future is to figure out how to prevent this sort of abuse from happening again.
It has been somewhat disturbing to see how easily your executive can disregard your highest laws with impunity only to have their actions repealed years later.
I mean, it is nice to have a constitution that declares things like a right to free speech and habeus corpus (or however that is spelled) but if the government can break that law for years without any legal sanction then is it anything but an empty statement of principles?
George Bush has proven that the American constitution has no teeth.
If an American president decides to break the law (any law) they cannot be stopped or punished in any way. The most that can happen is that they will be asked to stop... usually long after they have finished anyway.
Short of kidnapping white women is there anything your president cannot do? will your police forces EVER do anything to stop a president from breaking a law?
The answer seems to be no.
Re:Wow... (Score:5, Insightful)
Re:Wow... (Score:4, Insightful)
Re:Wow... (Score:5, Insightful)
Apparently you are unfamiliar with the whole "separation of powers" concept. It always was the of the judicial branch to review the actions of the executive branch.
Legislative Branch: Create/Modify laws
Judicial Branch: Review/Interpret laws
Executive Branch: Enact/Enforce laws
The NSLs were one case where the Executive branch was deciding for themselves what was and wasn't legal. That's bullshit.
Re:no kidding. (Score:5, Insightful)
Yes, as a junior senator, voting is something you can do about not letting it get worse. He's president elect now and has the ear of everyone in the beltway and the world.... so.... what is he going to DO about it? He can't vote against it anymore in the Senate. Where will his veto votes be spent? It's a nice history, that, but what is his plan to fix the problems. So many promises are broken on the day after inauguration. What is Mr Obama's plan going forward?
Re:Wow... (Score:5, Insightful)
Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".
Re:Wow... (Score:5, Insightful)
There is nothing magical about our Constitution. (Score:5, Insightful)
And the Congress Critters are elected from those same Americans.
Some of them are good. I'm in Washington state and all of my Congress Critters voted against the telcom immunity. And I voted for them again.
But the Constitution does not have any magical power to protect us. It is a statement that WE must support. Our forefathers died for those words.
Now, our Congress Critters won't even risk re-election to uphold them. Hell, they won't even risk the CHANCE that their opponents might say something mean about them.
Which is why Congress's approval rating is even lower than Bush's.
Get educated. Get organized. Then hold your Congress Critters accountable for their votes and their absences. That's the only way to get real change.
The Constitution Totally has Teeth (Score:3, Insightful)
Ya, a handful of people of were unlawfully detained, and there were attempts to repress critical comments, but when the American people finally got sick of it they were allowed to change directions. The US Constitution doesn't stop us from electing idiots, crooks, or both. But it slows them down with the checks-and-balances scheme and allows the people to get a new government without violence.
The Bush administration got away with far less than they attempted, and we've got the Constitution to thank for it.
Re:great news (Score:4, Insightful)
Congress passes all kinds of laws which are later found to be unconstitutional by the court. The ultimate check, in our system, on the congress and president is the judiciary. How would you do it?
By making there be consequences for passing an unconstitutional law, for starters.
They swear to uphold the constitution and then introduce an unconstitutional law... there should be real consequences for this. You know, to give them an incentive not to do it.
I'm not suggesting making it a criminal offense or sending them to federal 'pound me in the ass' prison or anything, but perhaps anyone that sponsors an unconstitutional bill should automatically be removed from congress. ie "fired" and is not eligible to run again, nor serve in any position in government higher than 'X'.
But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays).
If there were real consequences to introducing unconstitutional laws, maybe they'll think a little harder.
Re:great news (Score:5, Insightful)
The President swears to uphold the Constitution, but what if he chooses not to?
He's impeached, or his actions are ruled unconstitutional, as in this case. What do you want, a coup? Sadly, these kinds of decisions are too important to undertake quickly.
As you point out, the worst that happens is the court eventually overrules, but often the damage has already been done and the President can just try again in a slightly modified way.
But what remains is a more fleshed out interpretation of the constitution. After this case, these actions are explicitly unconstitutional. It should be harder for the congress and president to overreach. But you're right, you can't undo the damage. But impeachment could stop him from trying again.
At the very least it is an impeachable offense, but only if congress has the will to impeach.
Impeachment isn't supposed to be easy. How else do you minimize the chances the impeachment isn't politically driven, but to make it hard enough that a consensus is reached on both sides of the aisle.
Re:no kidding. (Score:5, Insightful)
Obama's position on civil liberties is clear. He doesn't believe in them any more than Bush did.
His positions on liberties and freedoms are like those of most politicians. They all promote freedom to do "harmless" stuff, because it's not a threat to them or their power. But it's very rare to find one who promotes the "dangerous" ones. Being able to speak freely about and criticize the government (and call them on it when they screw up), habeas corpus, keeping and bearing arms, the right to privacy (both physical searches and observation)... those are ones that keep the government from exercising absolute control. There's a reason those things are the first things mentioned in the bill of rights, and in very clear terms; they knew the government would sooner or later try to restrict that.
Re:great news (Score:3, Insightful)
By making there be consequences for passing an unconstitutional law, for starters.
But who decides what's unconstitutional? The Supreme Court has explicitly reversed itself a number of times. I'm not saying its right that the congress passes laws without giving any thought to constitutionality. But, most of the time, there is not enough case law (or the case law is conflicting) to be sure what you are passing is constitutional or not. Even in this case, as outrageous as it seems, there were genuine constitutional questions which had never been directly addressed.
I agree that congress has abdicated its responsibility to, at least, think about the constitutionality of the laws it passes. But there is no real, cut and dried, solution.
Re:great news (Score:4, Insightful)
Which makes me wonder if perhaps there's not a subtle flaw in the system? Under the current system, Congress creates and ratifies bills and then the President gives his approval and signs them into laws. In cases such as the PATRIOT Act with significant non-Constitutional provisions, it can take years before the law is tried in court, during which time hundreds, thousands or millions of people could be affected negatively by a law that's later struck down.
The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.
Re:great news (Score:2, Insightful)
Congress passes all kinds of laws which are later found to be unconstitutional by the court.
That seems to be the heart of the problem.
Congress knows (i presume) that laws they pass must be constitutional. In practice they do seem to pass a lot of laws that are not constitutional.
In essence, the writing and passing of such a law is an error. The system of judicial review detects and corrects those errors after a delay of a few years.
Would it not be possible to simply 'move up' the process of judicial review and perhaps make it mandatory and automatic?
The damage that can be caused by an unconstitutional law could be limited to 6 months or a year instead of many years.
This case is an example of those teeth. Is it as timely as I would like? No. But I would rather have the correct decision after a well reasoned and thought out case, than a quick gut reflex (which is the role the congress usually plays)
Yes, I agree, and no, it is not as timely as I would like ;)
But more than that, there seems to be no downside to passing an unconstitutional law. While the error will be corrected and the law struck-down there is no penalty for the infraction.
One can pass a bad law and 'profit' by it for 2-7 years without fear of penalty.
There is no dis-incentive like there is with most civil/criminal law.
I do appreciate that it is a very different situation and that the solutions used for criminal law cannot simply be copy-and-pasted.
I do think that the concept of a disincentive of some sort would be good.
Re:Wow... (Score:2, Insightful)
Except nowadays people think that's a bad thing because instead of checks and balances it's called "activist judges".
That's because they had a nice streak of creating laws rather than enforcing rights. It's good to see them doing something useful for a change.
Re:great news (Score:3, Insightful)
One of the consequences, at least what is supposed to be a consequence, relies on the people. When our elected officials do stupid things like create unconstitutional bills it is our responsibility as citizens of the nation to take notice and use our only power: vote them out of office. Unfortunately there are not enough people who take that responsibility seriously these days. The people are part of the checks and balances just as much as the executive, judiciary, and legislative are.
Note, I do realize that it can be damn hard to vote some of these idiots out, especially in areas of the country where they are firmly ensconced and have a constituency that is larger either clueless; or worse, in agreement with some of the ridiculous ideas they come up with.
Re:great news (Score:5, Insightful)
But who decides what's unconstitutional?
The supreme court.
The Supreme Court has explicitly reversed itself a number of times.
I don't really see how that's an actual problem. Firstly, it really doesn't happen -that- often. Secondly, if the court rules against something, and a congressman loses his job, and then down the road the supreme court reverses itself... in the big scheme of things what was the harm?
Remember, the congressman sponsored a law that he SHOULD have at least known had a good probability of being challenged in the supreme court, and a good estimation of how it would fare there, and he knew what the consequences were of it not passing. He made an INFORMED decision whether to gamble on it.
Seriously, I can live with that.
Besides, if anything, congress really shouldn't be passing laws that have even a reasonable CHANCE of being overturned in the supreme court. I don't really want laws that run "right up the line" either. If you are considering a bill and your lawyers and advisers are calculating it will probably be challenged, and that if challenged that 4 supreme justices will side with it, and 4 probably won't, and it will comes down to how Ginsberg is going to interpret the definition of X...then hey, maybe its not a very good law to gamble your career on! It probably should be reworked a bit so that it will sail through the supreme court.
As a bonus we'd also have fewer supreme court reversals as fewer laws would be proposed that tried to squeak up against the line without crossing it. Congress would be motivated to give the constitution some "space", which is a good thing.
To use a /. car analagy... if the legal limit on drunk driving is 0.08, and you know you lose your license if you get caught with that... well, you don't drink up to 0.079 and then hop into your car. You make damned sure you are comfortably away from blowing over. You don't want to blow 0.081 in a breathalyzer, and then squeak out of a DUI via a more precise blood test administered at the police station. Better to just keep yourself well below the legal limit and sail through.
The constitution was ignored (Score:3, Insightful)
First let me say that my country, the ol' U.S. of A. is far from perfect. Second, let me say as an anonymous coward, you fail to let us know your own country. The UK and Canada, two countries I admire, currently have their own issues they are dealing with. You could be posting from some third world country that believes that anything the US stands for is something you refuse to stand for and therefore you are anti-constitution. I don't know. But don't throw stones at our huge glass houses. And don't shit pan the US constitution without a discussion of what failed and what didn't.
What the constitution is:
1) A document of precise, but not perfect, rules by which to found and run a government with very specific checks and balances so that no one branch of government is more powerful than others, so that not only there would be cooperation in order to pass important laws, but there would also be some competition.
2) A document with an addendum to preserve specific human rights the founders thought were important so that no state could pass laws to take away those rights.
3) A document that is changeable over time, albeit with a little difficulty, so that the change isn't whimsical.
What the constitution is not:
1) A suicide pact
2) A written in stone monolithic set of commandments
3) Psychic paper which compels the reader to always obey it's rules
4) A document that can pick up a gun and enforce itself
What happened to the constitution was that it was ignored. It was ignored because over a very long time, the public was pushed in a specific direction believing that the direction we were going was the proper one. This involved countless economic and social reasons. And it just got worse. Most people didn't see it that way, because it didn't impact them personally, and the average wage was not keeping up with inflation, the rich were getting richer and poor getting poorer, more people being impacted by NSL letters, more soldiers were dying in Iraq for what we knew to be a lie, a terribly managed natural disaster, and then finally an economic collapse followed by the most inept management seen in living memory. Eventually the public would demand a shift to a different direction.
What happened on first Tuesday of November in 2006 was the first step in what shows us the first thing that is good about the constitution. As things get worse, as more and more people are fed up with bad decisions, people begin to exercise the single most important constitutional power they have... a vote. The 2006 election was the first inkling that the US was fed up with it's president. So we voted another party into power. This didn't fix the problem, this didn't even stop the bleeding, but it did apply a tourniquet. Since then, the political will was slowly shifting away from Bush. This allowed all these things to properly come to light. Then in 2008 we used that constitutional power again, and we soundly rejected anything and everything that man stood for.
And while we flexed the constitutional rights there, other groups were going out and using the constitution for what it was for, defending these rights that Bush and cronies tried to take away. Such processes take time, and they are bearing fruit now. You may want these things to happen immediately, and am right there with you, but they don't. If we did things like this whimsically, then everything we'd do would be on a whim, and we'd be in worse shape as more bad decisions snuck into a system that didn't properly vett them, as the US system is designed to try to do.
One of the reasons why it took so long to fix this is because the will of the people, partially driven by stupidity, partially driven by fear, partially driven by group think, and partially driven by a very corrupt and very bad set of politicians, was against changing the status quo. But when it got really bad, the constitution succeeded by giving us an opportunity to return from the edge, and I think we have. A court decision like this is proof of
Re:great news (Score:5, Insightful)
I see you're point. But instead of enacting a law, with technicalities and loopholes, we, the voters, should be the ones removing the congressmen from office. The two (or six) years between elections is usually less time than it takes for a case to be appealed up to the Supreme Court. And it doesn't require a constitutional amendment that these congressmen would never vote for.
If we, the citizens, want to protect the constitution, then we should step up and take responsibility for defending it from our politicians.
Re:no kidding. (Score:3, Insightful)
Well, people aren't willing to give up their partisan attitude, so, the most viable option is probably to implement a preferential voting system so that people can vote for who they really want, while not screwing over their "safe" choice (of course, the scary possibility that people actually think these assholes are the best for the job exists, but I'm hoping that's not the case). The preferred option is for people to actually look at more than just two candidates and call it a day. Now, surely many third-party candidates are every bit as flawed as the major candidates, but surely at least one out of the pack must have some worth, which is more than we can say for McCain or Obama (yeah, moderation abusers, I criticized him, mod me down again).
Really, though, at this point the most important thing is to get some fresh blood into the system somehow. What we have now is a bunch of people who refuse to vote for someone who isn't in the big parties, and two big parties who are so corrupt that it makes it nigh-impossible for anyone who actually wants to change things to get power. I don't care if we accomplish it by reforming the major parties, or making third parties viable, but someone has to get in there and get some actual change done, not the "change" that candidates have promised us for as long as I can remember (which, of course, is always a completely empty promise).
Re:great news (Score:3, Insightful)
If they pass an unconstitutional law, it should be automatic, and permanent. Having the people have to take action to fire a politician who passed an unconstitutional law is absurd as having the people launch grassroots campaigns to convict criminals.
Who would you have do this, then? What new office or department would you create to fill this need? What checks would be on this new office's powers? Who removes them, if they violate the constitution? Are they elected or appointed? By who? Is it a political or non-partisan office? What standards will they use to judge the constitutionality of a law? If a section of a large law is found unconstitutional, but the rest passes muster, which congressmen should be held responsible, those who voted for it or those who wrote the unconstitutional section?
This is a can of worms you don't want to open. You haven't thought this through. Why would you want to needlessly complicate things when there is already a simple and effective solution: the voters.
Re:great news (Score:3, Insightful)
I'm not sure there's a mechanism to forcibly eject such a person, nor what would happen even if there is.
There's no formal mechanism in place. So far, we have depended on the honor of the President to step down when his time comes. And its worked. But there are a number of informal safeguards in place that make it a really bad idea:
- Each member of the military swears an oath to the constitution, not the President. Hopefully, we could depend on them to stand by their word.
- Congress has the power to stop funding the illegitimate president.
- The states would shit a brick. The National Guard is under the governors' control.
- Finally, we have to depend on the president's own vanity, when he realizes that he will go down in history as the worst human since Judas.
But none of that leaves me especially confident.
Re:great news (Score:4, Insightful)
The simple solution, IMO, is to have a bill make a quick side trip to the SCOTUS before going on to the President. Glaringly unconstitutional items could be stripped out well in advance of them causing any problems. It means all three branches have a say in the creation of the laws, as opposed to two doing so and the third being left to clean up the mess.
This is actually the role an appointed senate is supposed to have. Basically, elected legislators are usually amateurs, and partisan. Appointed-for-life (or at least longer terms than elected legislators) senators have the luxury of building up experience of what things are most likely legal, as well as identifying unintended consequences of badly written legislation. Plus they no longer have to pander for re-election to the masses who may be emotional, uninformed, or inattentive, so the senators can point out flaws in the intent of legislation as well. Basically, they act as editors, ensuring that the lower house legislation actually does what it is intended to.
Unfortunately, in many countries that is seen as undemocratic.
Re:Wow... (Score:3, Insightful)
That's basically my point, the only difference between an activist judge and a normal one is whether or not the person speaking agreed with the decision.
Margaret Sanger and Planned Parenthood (Score:1, Insightful)
Just to offer an alternative viewpoint, not all agree with the viewpoint that Margaret Sanger was a racist. Furthermore, some would argue that she adopted the language of eugenics because that's what was popular at the time -- the United States had a eugenics program which was studied by Nazi Germany, and actually was praised by at least one high-ranking Nazi official during a visit to the United States. (Clearly, this was well before World War II started.)
Time Magazine gives a brief biography of Sanger [time.com], and here's another article [about.com] which gives an even shorter, but I believe equally balanced, portrayal. The Wikipedia article about Margaret Sanger [wikipedia.org] seems to need a lot of work -- it seems particularly biased toward the view that Sanger was a racist and eugenicist, and most sections are marked as probably misiterpreting or misrepresenting the cited source material. That's pretty bad scholarship, IMHO.
Personally, I don't see a big problem with eugenics in general. The problem is, the term has been villified because of what some groups (e.g., the Nazis) did in the name of eugenics, especially atrocities such as forced sterilizations and abortions. This is why I think any kind of state-sponsored eugenics is a bad idea -- such a program can too easily be abused. Instead, I think a more Libertarian approach is warranted, so that couples should be allowed to go to genetic counseling (a form of eugenics) when they plan to have a baby. When genetic engineering (a tool of reprogenetics, a form of eugenics) becomes available to weed out disease traits and select for desirable traits (e.g., high intelligence), parents should be allowed to avail themselves of such techniques.
But you were really trying to sling mud at Planned Parenthood by associating it with things that everybody "knows" are bad. In the end, Planned Parenthood is more about distributing condoms and birth control pills than it is about performing abortions, because the goal has always been to stop unwanted pregnancies in the first place.