NYTimes Sues US Gov't To Know How It Interprets the PATRIOT Act 186
hydrofix writes "Techdirt has been following the story of the DoJ's classified interpretation of the PATRIOT Act. Specifically, it's all about Section 215, the so-called 'business-records provision,' which empowers the FBI to get businesses to turn over any records it deems relevant to a security investigation. Senators Ron Ryden and Mark Udall have been pushing the government to reveal how it uses these provisions to deploy 'dragnets' for massive amounts of information on private citizens 'without any connection to terrorism or espionage,' a secret reinterpretation that is 'inconsistent with the public's understanding of these laws.' After NYTimes reporter Charlie Savage had his Freedom of Information request denied, the NYTimes has now sued the government (PDF) to reveal how it interprets the very law under which it's required to operate."
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
That will never happen, but I think we can make it less open to, shall we say, loose interpretation.
Make the spirit of the law explicit. The first part of the law should state "This is the problem we are trying to resolve."
Then let judges determine whether or not the executive (or a plaintiff) is using that law for that particular purpose. If they're trying to use it for another purpose, let them go to Congress to get a new law passed.
What blog can do this? (Score:5, Insightful)
Unfortunately, sometimes you need a real entity with some clout in order to bring this kind of information to light. It shouldn't be the case, but it is. And I just can't see a blog having the resources to do something like this, or discovering the wiretaps a few years back, or uncovering Watergate.
Most of the time, news is nothing special... stuff happens and it gets written about - but sometimes it takes significant resources, and I just don't see any news blogs being able to muster up that kind of force. Which is why you won't be finding me cheering the death of newspapers.
Re:Law should be like code. Not up for interpretat (Score:2, Insightful)
It's easy to say things like this without any thought for the implications of what you propose. The fact is, there will always be at least ONE interpretation, and it will be this interpretation that will be followed. Even if you call it "black letter with no room for interpretation," it's still just one interpretation.
The same thing applies to code. There is no such thing as something independent of interpretation.
what I find most illumunating (Score:5, Insightful)
is that we have to sue our own government in an attempt to force them to tell us about the laws they are enforcing against us. That alone indicates a huge problem with the system, regardless of the nature of the laws themselves.
If I could vote in one constitutional amendment right now, it would be "No Secret Laws". That alone would fix a great deal of evil by shining some light into the many dark corners of our government.
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
Yea, that will work.
Like the way many federal laws start with "...interstate commerce..." (one of the few federal powers, so it's the justification for many federal laws), and then go on to legislate on things which aren't interstate commerce, and the courts play along. Wickard v. Filburn, as a single egregious example.
Re:Law should be like code. Not up for interpretat (Score:4, Insightful)
We have so many "weasel words" in the language of law that interpretation is up to the judge and jury. Its not like engineering at all. Its more like the language of statistics.
Every time I try to read a business contract, its like reading some newbies code where its full of undefined variables.
Drives me nuts.
Re:Law should be like code. Not up for interpretat (Score:4, Insightful)
I think it's even worse than that. A "secret interpretation" doesn't even give us the basis for general expectations based on having an objective, available reference of the -same- code. This is more like having an entirely new spec with no necessary correspondence to the code available as the only means to characterize or evaluate it. Yet, it suggests the veneer of being like the objective reference by mere association with it.
It is, and it is not, this or any particular other thing at the sole discretion of those with access to the "secret" information that actually defines it. It seems like the very definition of institutionalized deception, that doesn't even acknowledge itself as such.
Like it's said... Mystery, mother of the abominations of the Earth...
Re:what I find most illumunating (Score:5, Insightful)
Secret "laws" don't even make any damn sense. A law is an instruction they want you to follow.
If they don't tell the NYT what the rule is, it's not a law at all. It's just standard run-of-the-mill selective enforcement of the rulers' whims. A tyranny.
try looking up ACTA sometimes... (Score:5, Insightful)
oh, you can't. sorry about that...
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
Many laws do have this kind of prelude and even those that don't have legislative history that may be helpful in ascertaining the purpose of the legislature in making the law.
That said, the law should be like open source code, freely available for anyone to read and analyze. Yes, it might be complicated and confusing to a non-lawyer, but computer code is complicated and confusing to a non-programmer. Even with that complicated nature, either can be analyzed with some study and effort, at least to some extent.
The real problem we have been having, starting with Bush's secret legal memos regarding due process free detention, and Obama's legal memo regarding due process free execution, is that the executive branch is essentially creating laws and keeping them secret making it impossible to know if what you are doing is something that will get you jailed or killed. That's a big deal, a dagger in the heart of what any free society is based upon, a shredding of the separation of powers, and ethically indefensible. There is no circumstance in which the rules of society ought to be secret.
Re:Law should be like code. Not up for interpretat (Score:5, Insightful)
Re:what I find most illumunating (Score:3, Insightful)
Re:what I find most illumunating (Score:4, Insightful)
They aren't hiding the law. They're hiding their interpretation of the law. Anybody can look up the law and read it. The government just decided they think the law means something different than anybody else thinks it means, and they won't tell you what.
You and I know that, empirically, hiding how the law will be enforced is the same thing as hiding the text of the law itself. Either way, the public can not determine what actions are illegal. The difference is that while hiding the law itself is clearly wrong in a very objective, supreme-court overturnable sort of way, classifying the government's interpretation of the law is doubleplusgood.
In fact, if this does make it to the Supreme Court, the DoJ can just say that they have an alternate, classified interpretation of The Constitution, that the Supreme Court can not know about this interpretation due to it being classified, and that this interpretation makes it legal for the government to radically reinterpret laws and classifying those reinterpretations.
Catch 22, SCOTUS, what do you do now? Before you answer, remember that you're not the branch with a Commander In Chief.
Bills often do that (Score:4, Insightful)
Even the Patriot Act is prefaced with
So although it was sold to the public as an anti-terrorism bill, it's right up front that they plan to use it for regular law enforcement too. A lot of other bills have a list of "whereas" in the beginning, listing the reasons and intent of the bill.
Of course none of this matters at all. The intent and history of the Second Amendment is brain-dead clear, but that doesn't stop people from trying to reinterpret it to rid themselves of a right they don't personally like. The 4th is pretty clear too, but it gets reinterpreted so that the contents of your cell phone aren't somehow equivalent to "papers and effects." And there's drug war property seizures in the face of the 5th's "nor be deprived of life, liberty, or property, without due process of law." You see, the legal action is against the property, not the person, so his rights don't come into play. I am not kidding, the cases read like "U.S. Government v. $10,000."
If the law or amendment is inconvenient to those currently in power, regardless of even the explicitly stated intent and clear history, they will simply reinterpret it so that it no longer is a problem for them.