That's an attractive sentiment but the reality is more of a spectrum. Should every government official be required to wear a body cam and record every conversation they have? Should we be able to track the position of every soldier in real time? What are the implications of every negotiation being public?
excellent catch, the conflation of laws and policies with tactical information is a standard trick in the disinformation/propaganda/useful idiot tact of minimizing when our government goes hog wild without our permission.
Everything is a spectrum. Such comments obviously refer to the fact that the U.S. gov is far from having the necessary level of transparency, despite Obama's promises to make his administration "the most transparent in history" (everyone remember that one? I'm sure he's still having a good laugh about it every now and then.)
There's a huge difference between keeping some amount of critical information (like the specifics of current military deployments) secret versus keeping laws and court proceedings secret. There is no reasonable justification for the latter.
No, not all needs to be public. Particularly negotiations while they happen need some privacy otherwise there is a risk they degenerate to a series of individual win-loose battles when a bundle of compromises would yield a win-win.
But one needs to take a look at the impact the IT industry had on concentration of knowledge and power. A lot of things used to take more people and was so subject to more checks and less privacy. Today these things can be kept perfectly private.
Right now due to less than perfectly implemented systems once in a while a door to a cache of "private" information is opened. These caches contain a mixture of stuff that should have been private and stuff that really should have been published a long time ago even if somewhat embarrassing.
These leaks are destructive in the sense that they undermine the sense of privacy in areas where this is vital and also undermine the trust as it becomes clear too much is kept under the rug. It also opens the door to all sort of conspiracy pushers. It is highly problematic that the society seems to be reliant on the leaks to stay informed.
Sharing information makes one vulnerable. It is also vital to connect. Governments need to decide on how they relate to their people. Actually the people need to tell the governments what is acceptable and what not...
Should every government official be required to wear a body cam and record every conversation they have?
Yes, and we have the technology now to stream it live. If someone feels entitled to spend my money and tell me how to live, it's the least they can do.
A public servant is beholden to the public. So yeah, there should be no problem with their official representational capacities being 100% recorded, in-office discussions and all.
Soldiers, as far as I understand, are not technically public servants. But correct me if I'm wrong.
I'm glad to see discussions like this that are looking beyond the election about how we can move forward to increase transparency, working to hopefully regain some of the public's trust. An open question is whether we as a nation can keep pressure on the officials to get changes made. Difficult to do in the best of circumstances and even more so in the current state of polarization and divisiveness.
What compounds this problem is that nobody cares about anything regarding this until they're locked up themselves. And even then, since it's just one changed mind, it's hard to move the incredibly strong tide of the government.
How can we get the populous to care, but more than just a 30 second "oh that's not good" then resuming with their normal life?
I'm trying to figure out a way to address your comment in a constructive way. Does "wait at least 8" imply doing nothing now? That's how I read your comment, so please correct me if I'm wrong.
I don't think there's a quick and easy solution. Everything's not going to be changed overnight--even if we all agreed on what the final state should look like. I'd like to think we can figure out ways to move forward in the direction we generally want to go, knowing that it'll take a while to get there.
I do think only waiting is going to make things worse, harder to change as time goes by and the current situation becomes even more entrenched.
There are multiple projects here, too. One is to increase transparency. Another is to identify common goals that have support across the divides we currently see. I'm sure there are others. Identifying common goals and building support is something I don't think we need to wait for.
I apologize if I've put words in your mouth. Please correct me if I have.
The bitter irony is that we have a seated president that promised such things, but only stood to do the opposite. We simply can not trust the vast majority of our political body to do what they say, promise and in turn we elect them to do.
We are probably less than a couple decades away from a 1984-like dystopian future, or a very large scale block of civil unrest and domestic warfare. The increasing separation of classes combined with the duplicitous nature of politics and corporatism in the U.S. (let alone through the world) can not be strained much further without one of those results taking hold.
We still have the revolution-via-vote of rejecting the 2 major parties and casting in with the upstarts, even if they won't get in this time. It doesn't need to come down to unrest and violence. Rep vs Dem is a false dichotomy; it just has current momentum (which happens to be falling fast).
another open question: can we as a nation completely repudiate our government? they're long past acting for our benefit, and actively conspire to keep us stupid and afraid.
I believe Texas had some clause in joining the federal government that allows them to bail. I would suspect other states could leave the union if push turns to shove and momentum grows in that direction.
However, everybody has wanted and continues to want to have their fingers in the federal pie, and that makes it much harder to pull away given how much everybody is now dependent on and intertwined with them.
But there is 1 interesting precedent being set: Legalization of marijuana. It is still federally illegal to use/possess/sell it, but states have rejected that and set their own standards. I don't think they can stop the feds doing raids within their borders, though, so it's not a total repudiation.
> When President Obama issued procedures and standards for using lethal force against suspected terrorists overseas, agency officials were bound to follow them.
It's a perpetual, boundless war fought on our behalf. It's too bad Congress can't find a way to permit this activity in some limited fashion without just ignoring it (congress please RTFM: Article I, Section 8, Clause 11). This sets a horrible precedent for future presidents. We have ceded enormous discretion to the executive here. It seems prudent to have a ton of oversight and disclosure surrounding programs that allow for execution of individuals, regardless of where they live.
Footnote: Rep. Lincoln (regarding conflict w/Mexico over disputed Texas): "The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."
This. People need to start demanding that all "strikes" against a country are first approved by Congress and for a limited period of time. The president should only retain the power to attack if there is an imminent threat that can be stopped by a quick response from the president. Even then, it should still be evaluated as soon as possible by Congress to see whether the president's "emergency response" was warranted or not.
And by imminent, I mean the actual dictionary definition of imminent, not "Obamalang" imminent:
> In addition to conducting airstrikes against Isis is Syria on Tuesday, the Obama administration also announced it had also targeted the “Khorasan Group”, a separate al-Qaida-linked terrorist organization. They justified it by claiming that the group was plotting an “imminent” attack on the US. Before last week, hardly anyone had heard of the Khorasan Group (in fact, even their name was classified), so it’s difficult to judge from public information just how threatening their alleged plot really was. But when you add in the administration’s definition of “imminent,” it becomes impossible.
> Take, for example, this definition from a Justice Department white paper, which was leaked last year, intended to justify the killing of Americans overseas:
> [A]n “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.
> To translate: “imminent” can mean a lot of things … including “not imminent”.
> It's too bad Congress can't find a way to permit this activity in some limited fashion without just ignoring it (congress please RTFM: Article I, Section 8, Clause 11).
We have the War Powers act. We have the AUMF. We have funding bills both for equipping our armed forces and for operations. We have the gang of 8 notifications of covert action. This is just off the top of my head. What sort of limited oversight are you looking for?
> We have ceded enormous discretion to the executive here
This is best exemplified by our nuclear chain of command. The President has unquestioned power to launch nukes. This applies irrespective of whether we are launching first.
That is, the President's order is necessary, but not sufficient. I think generally this sort of restriction to a single actor suggests an extraordinary level of restraint as a country, rather than discretion. Other actions which require Presidential level direction are drone strikes and cyber attacks.
"If the Secretary of Defense does not concur, then the President may in his sole discretion fire the Secretary. The Secretary of Defense has legal authority to approve the order, but cannot veto it."
Two people (in one branch) to authorise, but still one'a decision needed.
"It is part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusionary [sic] foundation of complete unreliability and renders among our political leaders almost a greater fear of peace than is their fear of war." (D.W. Eisenhower)
"In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power exists and will persist." (D.W. Eisenhower)
He was absolutely right, and I'm not sure that there's a realistic way out of the decades-deep hole we've been digging for ourselves. Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack, it seems hopeless.
> Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack
I agree but we must admit that it's terribly difficult when faced with terrorism to consider the proposition that doing nothing might be better than any action. Harder still is to make the claim in front of politicians who might consider that an opportunity to spin it into a weakness rather than a strength.
> I'm not sure that there's a realistic way out of the decades-deep hole
I'm not either. I think broad-stroke laws reversing much of the damage are necessary.
We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid.
Regarding government documents in general, I think everything should be published by default. Instead of FOIA applications to have information published, agencies should be applying to keep their documents secret.
>"We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid."
The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and 'advisory opinions', as well as re-interpreting existing rules in very creative ways. What is really needed is greater fidelity to the structural protections by the constitution (such as the Bill of Rights and non-delegation), but I have lost almost all hope of that coming to pass.
The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and simply re-interpreting existing rules in very creative ways
Yes, Chikasu's broad-stroke laws can only work if they are part of a cultural shift away from seing micromanagement as the government's job.
The agencies are what they are from the mentality that everything in our society must be "run" perhaps by a "czar". People call this regulation, but in order to run things, the authorities need not laws and predictable rules, but arbitrary (if scope-limited) powers.
This is why "term limits" sound great in theory but are worthless in practice.
The people who are writing these laws by another name (guidance letters, recommendations, etc) are nameless, faceless people who no one will ever know. And unless it's an official "memorandum of understanding" or similar, we won't even know their names.
The people we see and hear in the news are just the distraction so we miss the real show.
This can only happen when you lack accountability and actual representation in a republic. I've concluded that the general chain of reasoning is this:
Unrepresented -> Corruption -> Money -> Corporate Influence -> Gerrymandering / First Past the Post / Term Limits -> Whole election system is fucked
The way the US, and most other governments, are organized is broken because of a lack of humanity. If you try having one person represent millions, those millions will always be numbers to anyone, and that person will just be a name on a ballot to the numbers. Real representation requires a personal relationship, and that means you need to build government on the foundation of your community first. I generally see every position added to the ballot as a failure of a republic, because what you really should be doing is electing, say, a regional council (using STV or other proportional voting systems) whom then both nominates higher offices and appoints everything you would normally have on the ballot. Because that is their job, and you would not be picking between the lesser of two evils on a ticket but one of a few hundred of your neighbors who is exemplary who would do the best job.
Most people I know, at least in less dense neighborhoods (and community interaction in cities and dense living always has been problematic) can name someone who lives around them they would want to represent them in government. And you are much more likely to have reason to trust, and hold responsible, your neighbor than some guy who lives in the richest part of the city, state, or country and whom you will never meet in person, and they will never know you to give a damn about your liberty.
It is constitutionally provided for to have ~30k citizens per critter. But congress is left to determine how many critters there should be. Providing more critters, and thus less people per critter would reduce the amount of power they wield individually, thus there are absolutely perverse incentives at work to keep our congressional representation as citizens to a minimum.
I would like to see a system of government that is similarly granular to your suggestion, but on technical lines rather than geographical. I tend to agree with very, very few of my neighbors on some issues, so rather than having to form a geographically local coalition, maybe better representation can be achieved by allowing the like-minded to choose representation across geographic boundaries, or to choose different representatives for different categories.
While we're at it, could we make this hypothetical government's legislature use a fractional (or maybe one-citizen-one-vote) tally, with representatives acting as proxies that individuals could override for specific votes?
You have synchronization problems when every hill has it's own fiefdom. You get political deadlock, effective NIMBYism, corruption too small to get sunlight repeated at every hill, and things like making a metro transit system impossible because 60 municipalities can't work together.
Just think about the general issues of a HOA gone bad and how hard it can be to deal with it without great personal cost. That is the problem of micro government in a nutshell.
This hits close to an idea that has been floating around for a while. Basically, the Apportionment Act of 1911 needs to be replaced, with something that sets the number of representatives equal to some population number (say one representative for every 10k people. One of the suggestions is to set that number equal to the population of the smallest district. The idea gains a lot of support when its presented that people who live in certain states have "more" access to congress because their representatives represent fewer people. I'm to lazy to dig up the actual numbers but IIRC there is something like a 40% difference between the most populous district and the least. I've also wondered if massively increasing the number of representatives (say a few thousand) would help to remove some of the special interests, as it would take a small army to wine/dine the entire congress. Except, that I guess some of these interests basically have infinite money and could actually afford that army.
California is the worst in the United States when it comes to the population vs state legislator issue. 80 members of the assembly and 40 members of the senate for 38.4 million people. Compare that to Vermont with 150 members of the House and 30 senators for a population 600,000. California could be construed as taxation without representation. You are completely correct that more legislators means less big lobbyist influence.
California citizens retain legislative power and exercise it fairly freely including on matters of taxation, where they have sharply constrained the elected legislature, and retain the power of referendum to undo any act of the legislature (whether on tax or other matters.) As such, whatever the ratio of citizens to members of the legislature, it's ludicrous to suggest that it is "taxation without representation."
The problem is that laws themselves are localized. How would you form districts or states or even local government without a "local"? If you had one giant congress for all of the US that maintained humanity by having a representative per reasonable limits of human empathy (Dunbar's Number, or 150-300, and a good politician who is very empathic might reach up to 500) you would have a million and a half representatives, maximally democratic in that you only need find 300 like minded people in 320 million to support your candidate to have a representative, but completely alocal. That body would only be able to write laws that apply nationally, with no local distinctions, without bringing in the same defective mechanisms we see today pork barreling legislation into incomprehensible babel nobody reads with exceptionalism and stipulation on where and how the rules apply.
You would need a way to make local law not geopgraphically local but ideologically local. I would love to hear ideas on how you could ever manage that, but my proposition sacrifices some of the humanity potential (if you are voting STV for a local council in a town of 3,000, and have 10 members, in theory each member represents 300 people but nobody will personally know all 3,000 and thus is limited in candidate to whomever they do know, or worse, someone they take at face value like they do today). You lose quite a bit of democracy there, in that some people probably will not have a candidate they like - there are certainly more than 10 distinct political viewpoints in 3,000 people.
But I'd also think such systems would promote people to live with the like minded. If you disagree strongly with your neighbors... you are probably in a bad neighborhood for your own good and happiness. Surrounding yourself with enemies in your daily life provides a fulfilling life to few. But that goes down a deeper rabbit hole of people not considering nuance in where they life - they place work and profit ahead of all else, and will prefer a trash bin in the Bay Area over less lucrative ventures elsewhere they can have a more fulfilling life in general.
We don't need term limits for people. People come with built in term limits of one form or another. What we need are term limits for laws. Absolute Sunset should be built into the constitution and every law, regulation, charter, advisory, authorization, order, or any other kind of governmental rule should be subject to it. At regular intervals we should require our elected representatives to explicitly affirm, without debate, the existing laws. void all the ones that don't get reaffirmed at the end of the session. That way we'll always know whether the politicians can be trusted to make the right choices and also it will put a limit on how complex government can be.
No. And they're also not legally binding. And an agency treating guidance as legally binding is also a great way to get the guidance overturned in court, because there are strict legal requirements for the procedures agencies must follow before issuing binding rules.
Not at all. A "law" is where the government tells you or I what to do in its capacity as the government. These directives are where the government leadership tells its own organs and employees what to do in their capacity as leaders of a large organization.
Right, I know how the legalistic mind works. My point is about where "its own organs and employees" meets the citizenry. Leadership means these things permeate the org chart, and you can't segregate this stuff into a closed box of "their capacity as leaders."
I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?
If you strictly interpret the constitution, a great deal of federal agencies and actions are clearly disallowed, but these restrictions have been gradually eroded (most notably during and since the 1930s). The US government is supposed to be one of enumerated powers, and it was never granted the power to create anything like the Department of Health and Human Services, the Department of Education, or the Federal Electoral Commission. There is no provision for any warrant-less searches (which violate the Fourth Amendment), and campaign finance laws clearly violate the First Amendment (strictly read). Delegation of the power to criminalize activities is also not allowed by the constitution, yet there are thousands of regulatory crimes. The Tenth Amendment is clearly a dead-letter now.
The Constitution is simply a means to an end now; it's merely a political talking point. It stopped being the actual basis for ethical, legal governing a long time ago.
If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
I think your analogy is a little misleading. In my opinion, the foundation is still strong, but where the foundation was for one shape of house, the additions and changes made on top of the foundation are unstable.
I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
> If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
To me this is one of those statements that might sound superficially wise, but hides something very dark. Yes, if you take the analogy literally, it seems foolish to build on crumbling foundations. But that sort of literalism might be silly here.
What do you mean by "crumbling"? The entire project of a democratic republic lies on the collective respect for a set of rules that provide the scaffolding for all power to be granted by the people, according to the will of the people, to do what the people think is best for them. Right? That's the whole idea of government in the American sense, correct?
Now if the political class starts to ignore some of the ground rules (which is equivalent to taking power for itself), and nobody prevents this, can we claim that the democratic republic maintained its integrity? Or was democracy itself eroded? And if the answer to this last question is yes, how can one defend that the moral choice is to just accept it? Shouldn't we obviously demand strict observance of the ground rules, so that the legitimacy of those who exercise power in our name is unquestionable, before anything else? And then try to change the ground rules if the majority feels that they no longer serve us? And then strictly observe the new rules so that legitimacy is not compromised, and so on? Or am I just crazy?
>If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
Obviously a country is not a house, and countries have been very successful with only a single constitution (America) and with many (France). But generally changing constitutions frequently does not make for a politically stable state, and much in terms of quality of life rests on political stability.
I lean strongly textualist and I disagree with your conclusion.
1) The federal government is one of enumerated powers, but it has plenary authority over areas it is allowed to regulate. The Constitution gave the federal government the power to tax, spend, and "regulate interstate commerce." In a world where interstate commerce is pervasive, giving the federal government those powers allows it to do almost pretty much everything. But those are the words on the page! Just because the result might have surprised framers who were thinking about independent agrarian farmers for whom an interstate transaction might be the rare exception does not mean you can ignore what the words on the page mean.
2) As to agencies, the Constitution creates an executive, and contemplates the existence of executive deparments. The first agency, the customs service, was created by the first Congress in 1789!
3) The Constitution prohibits only "unreasonable" searches and seizures. That implies the power to search and seize. And the idea that warrentless searches are presumptively unreasonable is as much a judicial-created gloss on the Constitution as the idea of exceptions to the warrant requirement. Remember: the very first Congress created a scheme of warrantless searches by the Customs Service.
4) The non-delegation principle is itself a judicially-created concept. It's not in the Constitution.
5) The 10th amendment never meant anything. It literally says "any power not granted to the federal government is reserved to the states or to the people." It doesn't provide any basis for deciding what those powers are. Take something like Obamacare. If that's a legitimate exercise of of the taxing or commerce power, it by definition cannot violate the 10th amendment because it's an exercise of an enumerated power. And if it wasn't a valid exercise of those powers, it's void for not being a valid exercise of an enumerated power. The 10th amendment can never be the reason a law is invalid.
1) You are interpreting the 'Necessary and Proper" clause without respect to the 'proper' part of it. I agree that effective regulation of many areas requires regulation of intrastate commerce, but that is improper.
2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce.
3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant.
4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion.
5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.
1) No I'm not. Article I, Section 8, gives Congress power to "To regulate commerce . . . among the several states." When I buy a snickers bar at a vending machine in D.C. using a debit card associated with my California bank, that's interstate commerce. No need for a "necessary and proper" analysis.
2) Nothing in the Constitution gives the federal government power over "customs." It gives Congress the power to "collect duties." Clearly, Congress interpreted that in 1789 to mean it could create an agency to administer the collection of duties. But that same reasoning applies to any other agency, when the subject of that agency's duties involves an enumerated power.
3) General warrants gave authorities the right to go into peoples' houses and search them for contraband with no probable cause. Warrantless searches we see today do not allow the government to do that. Also: the Constitution doesn't say anything about general warrants. It just prohibits "unreasonable searches." What is there in the text of the Constitution to say that an warrantless exigent circumstances search or a border search is "unreasonable?" Besides your own opinion?
4) The Constitution "vests" legislative powers in Congress. The non-delegation doctrine interprets "vests" to require Congress to exercise those powers itself, but nothing about the words requires that construction. E.g. Article I gives Congress the power to "collect taxes." Obviously Congress can delegate that authority--the Constitution clearly does not contemplate Congress itself going out and collecting taxes.
5) No, the 10th amendment says "the powers not delegated to the United States by the Constitution" are out of bounds for the federal government. But the 10th amendment isn't what makes that true--it's inherent in the design of the Constitution. So any 10th amendment issue is really a fight about what was "delegated to the United States by the Constitution."
1) I agree that regulation of the importation of chocolate bars from one state to another is within the proper power of Congress, though regulation of the actual vending machine would clearly be up to the state. On the other hand, I have read Article I Section 8 many times, and I still cannot agree that Wickard v. Filburn was correctly decided; I would say that the federal regulation of intrastate commerce was necessary to that scheme, but it was improper.
2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution.
3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'.
4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do.
5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.
Regarding (3): There's no direct connection in the Constitution between the word "reasonable" and the word "warrant". "Warrant" is there to to limit the scope of the kinds of warrants that can be generated --- to prevent the "general warrant". "Reasonable" is there to make sure all searches, with or without a warrant, must survive a "reasonableness" test --- they must be related to some legitimate goal of government. If you attempt to design a legal system off the idea that all searches require warrants, you wind up in crazytown: for instance, the police, apprehending a mugger they have just observed holding up a couple at gunpoint, cannot reasonably search the criminal.
Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.
Saying that a search "must be related to some legitimate goal of government" is no limitation at all. I would agree that searches incident to arrest (for a cause other than refusing a voluntary search) are not required (by the constitution) to have a warrant, but am not sure what other un-warranted searches are reasonable. The kings of England would certainly say that preventing assassinations and insurrections was "some legitimate goal of government", but it seems the founders disagreed that kings should be ransacking the houses of their subjects.
Yes, I agree that the states were not delegated all powers not expressly delegated by the constitution, but "the people and the states" were. I have never heard a better explanation for the 10th amendment than to say that it was restating the enumerated powers doctrine (though I cannot recall where I first heard that explanation). If you have a better explanation of the 10th amendment, I am very interested to learn what it is.
If you concede that a search incident to arrest requires no warrant, you've already conceded the argument that the Constitution doesn't require warrants for all searches (which is good, because it clearly doesn't), and we can move on.
Regarding your second point: the change was not "states" vs. "people and the states". The change was whether the rights referred to were solely those expressed in the Constitution, or something broader. Broader won. This is an argument you are going to need to take up with the authors of the Constitution, because they do not agree with you.
The 10th Amendment is also about future-proofing the Constitution.
On the one side you have the "But the Framers didn't have machine-guns, or CRISPR." On the other side you have people who would ask "So I don't actually have a right to use strong encryption? I don't have a right to build a rocket? I don't have any rights that were not imagined by the Framers? All new inventions have to be allowed before they can be used?"
Otherwise anything could be "necessary and proper."
So, let's have a hypothetical about something really fundamental: If I could CRISPRize negligible senescence, or superintelligence, do I have the right to do it?
Just because the Constitution does not exclusively enumerate rights does not mean any particular right not enumerated exists. In English law, "rights" arose from law and tradition. It's a fundamentally backward-looking analysis, not a forward-looking one.
Do you have the right to use strong encryption? If you can fit it into a right the framers would have recognized based on English law and tradition (probably free speech), then yes. If not, then no. The 10th amendment has nothing to say about that.
Fundamentally, the Constitution is not really about "rights." The Bill of Rights was added to appease those who were worried the central government would impinge on the traditional rights of Englishmen. But the real purpose of the exercise was to create a powerful, but democratic, central government that had the authority to do the things that needed to be done.
Was the Constitution always interpreted that way? Was it written by people who thought that way? The assertion that the Xth Amendment is a nullity seems to indicate a shift in the way the Constitution fits in law. Or at least it indicates that the interaction between deference to that document and the way US law evolved turned some words that people who wrote them thought meant something into a nullity.
To be precise, the 10th amendment is a nullity if you already accept that the federal government is one of enumerated powers. At the time of the founding, that was a novel concept and it probably made some people feel better to have it stated explicitly. But today that's taken as a given. The debate is never over if the government has powers not enumerated, but whether a particular action falls within the scope of an enumerated power. And the 10th amendment tells you nothing about the scope of the enumerated powers.
We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review.
Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.
The article and the report it refers to describe multiple categories of directives and opinions/judgements that apparently do have the force of law.
Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of
classified reports by reference, bestowing on them the status of law."
National security directives set policy and instruct government bodies. They're an exercise of the President's plenary authority to tell the executive branch what to do, not lawmaking. OLC legal interpretations are legal advice, not laws. Federal agencies may rely on those interpretations to take certain actions, but they cannot regulate private conduct. Congressional-executive agreements pertain to controlling trade policy, an area over which Congress and the President have plenary authority to begin with.
Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA.
Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.
Interesting points, but I don't see how you can argue that FISA decisions do not have force of law. It's a _court_ applying and interpreting law, which we all know (Roe v. Wade, Brown v. the Board, etc.) can have as sweeping and definite of legal consequences as any statute passed by Congress.
While court precedents can have the effect of creating law, FISA decisions don't regulate private conduct. Also, like many courts, FISA publishes both precedential and non-precedential opinions. It's not clear that there are any precedential FISA opinions that haven't been published.
Please read the report. The term "secret law" is purposefully used with quotes. While not all of the above categories are technically "laws," they often have the force of law and are significantly influencing the actions of the government and its citizens.
Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.
If a law-alike like an OLC opinion isn't recognized by judges, how can it have "the force of law"?
Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?
If an OLC opinion is the difference between torture and no torture or extrajudicial killing and no extrajudicial killing, it should be public.
If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition.
In any case, the argument over semantics is uninteresting.
The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent.
I think they should. I don't know what you think because you didn't respond to the question.
We can agree that OLC opinions authorizing torture are bad without agreeing that they are law. One of the things that makes those OLC decisions bad is that they are lawless: they contravene the law. (The other, obviously, is that torture is inherently wrong).
Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.
We need to blame the voters as much as we blame the politicians. People get so scared that they demand a dictatorship, basically.
Look at the scare du jour, ISIS. I mean, come on! We have the worlds largest military by a factor of 10, and yet people are peeing their pants at the sight of a few gun-toting crazies 8,000 miles away!! We faced down USSR which had the capability to annihilate us 100 times over, and yet we cringe at the sight of ISIS. What's wrong with these people?
ISIS is hardly a problem when it comes to the military industrial complex. The constant fear mongering over Russia recently is the real and serious driver here. The military doesn't want to fight ISIS because it's not predicated on expensive jets, aircraft carriers, naval warfare, cyber, etc, etc.
It's not a mistake that any level of provocation by Russia is met with weeks of saber rattling and outrage in the media.
Although ISIS is a good driver for expanding the intelligence community. Hillary Clinton's primary military strategy that she promotes on her website is expanding an already bloated intelligence community and broadening intelligence collection. Both candidates are very much industrial complex friendly. That's one of the few things that's certain in this election.
if pure military industrial complex expansion was the goal, we'd already be fighting in the south china sea. a huge amount of manufacturing would be forced to move stateside again, and lockheed/nothrop/boeing/raytheon/etc. etc. would make a lot of money.
What's your definition of "threaten"? North Korea cannot win an all-out war with the US. But it seems reasonably probable that at some point in the decades to come, they'll acquire the ability to start such a war by hitting the US mainland with one or more nuclear missiles, potentially killing millions of civilians in one blow, in a catastrophe utterly unprecedented in world history - not to mention what they could do to South Korea and other nearer countries today. And while their leadership probably isn't crazy enough to actually start a war, they're pretty damn crazy. I consider that a threat.
The state specifically fear-mongers in an attempt to get the powers they want.
"Shock Doctrine".
Given the influence the state has on the media, it's nearly impossible to blame the electorate. They exist in a media bubble that makes these state-sanctioned power grabs seem reasonable, even cost-free.
Eisenhower did not want either to abjure or to further turn opinion against them and so left it unspoken, but the original phrase was the "military-industrial-Congressional complex".
By the laws of the nation, it could not be enabled any other way.
There are a few hundred primary law makers, a few thousand if you count their aides, and a few tens of thousands if you count the bureaucrats involved. There are hundreds of millions of people living under their rule.
They can't do this without the consent of the governed. You give consent when you vote for a politician who has supported this form of government because they're a member of your party, or running against the party you hate. You give consent when you quietly accept this, or ignore this. You give consent when you vote for the lesser evil, since you are still voting for evil.
Don't vote for the establishment, it's proven to be untrustworthy, irrespective of party. Write your representatives about this, pay attention to who you vote for at every level. Secret law is a huge step towards despotism, so basically, don't vote for anyone who has supported it in any way. This may mean you don't cast a vote for anyone depending on where you live.
Kudos for an excellent description of how slavery works via the consent of the oppressed. This understanding is likely why the founders of the USA reserved the right of the people to have revolutions.
They seem to be doing just fine without the consent of the governed, given voter turnout in the US.
I prefer to look through the lens of expected value. How can you vote in a way that maximizes the chance that your preferred policy outcomes will go through? "Don't vote for anyone who has supported it in any way" is nice in theory, but there are plenty of times when a vote any other way has lower expected value.
I keep being impressed by Michael J. Glennon's "National Security and Double Government" (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2376272 ; subsequently also published as a book), which gives a fairly disturbing analysis of the "Madisonian" (or "dignified") institutions vs. the "Trumanite" (or "efficient") institutions in the government and how they relate to one another.
EDIT: Just looking through the abstract I agree that it is a very scary assessment.
Abstract:
National security policy in the United States has remained largely constant from the Bush Administration to the Obama Administration. This continuity can be explained by the “double government” theory of the 19th-century scholar of the English Constitution, Walter Bagehot. As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints. The public believes that the constitutionally-established institutions control national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal. Absent a more informed and engaged electorate, little possibility exists for restoring accountability in the formulation and execution of national security policy.
I am not sure I can agree with this. Whether knowingly or not, Eisenhower coined the term "military-industrial-complex" (MIC) and to me this is a form of disinformation, and unless one is willing to ascribe extreme naiveté to General Eisenhower, disingenuous.
The MIC is the visible portion of a larger complex. The correct term (since his warning was issued post OSS and CIA) is the Military-Intelligence-Complex. And the industrial part is merely the means for the governing plutocracy to milk the national treasury, and, reward the faithful servants of the powerful interests. And unless we are to assume that we have indeed been living under a secret military goverment since WWII, the military of this nation is supposed to take its orders and direction from the civilian authorities.
Secrecy is the domain of spooks.
That said, I also find it 'interesting' for the "august" New York Times to opine regarding the "unsettling" character of the current American regime at such a late date. Where were the ladies and gentlemen of the New York Times editorial board in 2001 when Patriot Act passed without a nod towards even a sham attempt at deliberation?
An entire generation of Americans has been born and raised to adulthood since 2001, and no doubt, just as they find the internet and web to be a 'natural' aspect of life, they likely find nothing objectionable to "secret laws", "warrantless" action by the government, "torture", and the rest of that sordid and entirely unAmerican (at least to this old fogey) laundry list of creeping authoritarianism.
As I skimmed some of the comments in this thread, I also noted that the general theme of corrective actions that are suggested seem to place an unreasonable emphasis on architectural aspect of the system.
But we already had and have standing laws on the book. What, pray tell, would further emblemishments to the constitutional order achieve when existing laws are 'cleverly' circumnavigated and the constitution treated as a dead letter?
A people can not be saved from themselves.
America used to produce a people whose mother's milk was Liberty. The current actors in our system that knowingly and willfully distort or disregard standing laws (such as the War Powers Act) are either America's own sons and daughters or we have been literally subverted by a foreign people whose mother's milk was not and is not and will never be life, liberty, and pursuit of happiness (for all).
The long term, and strategic, response to this malaise is simply this: every single one of you who has children must instill the essential American Values in your children. For unless we are indeed not only subject to secret laws but also to secret occupation, then it is our children, our sons, and our daughters who vie with one another in finding clever ways to trample the American Social Contract underfoot.
Now that the world is ruled by Russia, China, India and others, this is a distinct possibility if the people of America don't get their shit together and start being builders rather than destroyers.
It is a serious cultural revolution happening world wide.
Well said. Although I only agree within the domestic context. Some countries make all their citizens tax returns public - that's a good kind of openness. However, when dealing with foreign countries there will often be a need for secrecy.
It's even worse than having secret law -- it's secret analysis and interpretation of law.
In some cases, if a statute says: "All pens must be blue", and the administration's attorneys study the statute and determine "When the congress said that pens must be blue, we understand that they meant to say black", and they then make that determination secret. The outcome isn't secret law, but secret meta-law.
Unfortunately, this isn't new, either, and happens by the courts as well. I still cannot comprehend how the draft does not violate the 13th Amendment. Reading the court cases, the argument seems to be "We know that involuntary servitude is forbidden, but surely they didn't mean this kind of involuntary servitude."
Secret Evidence (not made available to the defense)
Secret Convictions
Secret Prisons
Secret "enhanced interrogation" programs
Gee, it sounds like we've become everything we were fighting against in the previous century.
But it keeps the money flowing.
Next after the military industrial complex is the for-profit prisons. Vacant cells mean lower revenue and thus degrade profits, executive bonuses and shareholder value. Our education system needs to be geared to produce just enough inmates to occupy the for profit prisons, and enough productive workers to pay for both the for profit prisons and military industrial complex.
Secret trials and convictions? Don't exist in the US. Also, evidence cannot be used in court but withheld from defense attorneys. You're just making this stuff up. There are no secret prisons either. If you're talking about battlefield prisons for captured combatants, that's obviously different than the criminal justice system, and is par for the course in warfare.
You can definitely have secret warrants. How could you not? Imagine if the cops had to publish the details of wiretaps. What use would they be? Nevertheless, the secrecy must be justified and approved by a judge every few months.
Frankly, if a warrant would be useless if it weren't kept secret, I'd rather there be no warrant at all. And yes, I'm prepared to accept the consequences of that.
You can only entertain such ridiculous thoughts because you live in a society that's not totally controlled by criminals. Try living in Mexico or Colombia and I bet you'd have a different opinion.
Or, YOU can only entertain such ridiculous thoughts because YOU live in a society that IS totally controlled by criminals. I don't want to live in a country optimized against the assumption of control by criminals.
> Try living in Mexico or Colombia and I bet you'd have a different opinion.
How did those criminals get to be that way, hmm?
It's not like they make all of that money off of ... kidnapping. Or robbery.
It's drugs. They make the money from selling substances that are illegal briefcase of our insane, failed drug policy. These criminals would not be so wealthy if drugs were legal. That's a simple, straight up, undeniable fact.
Evidence withheld from defense - State secrets privilege
Secret prisons - CIA black sites, Chicago detainment center
Secret warrants - FISA warrants are almost never rejected, and I'm not sure they need to be reapproved in general. They are almost never declassified, even after the wiretap is completed.
Wow... have you really not been paying attention to the news for the last decade and a half? Hell, the FISA court system and Civil Asset Forfeiture alone go so far beyond the oppression this country stood up for. Troops on the ground in sovereign nations without a declaration of war? As for evidence being used in court while being withheld, see "parallel reconstruction"... This is just the tip of the iceburg here. It's oppression and corruption of everything this country was founded on.
Congress has passed authorizations for all of those. The only difference between that and a declaration of war is the word "war", which makes no difference legally.
Edit: It's amazing that I'm being downvoted for a factual response to "Troops on the ground in sovereign nations without a declaration of war?"
How about a clear term of engagement, goal, resolution? I don't think we'd respond too well for France sending troops regarding Mexican citizens inside U.S. borders. We are not engaging state actors in foreign nations, and we are not engaging foreign actors within our own borders.
As it stands we have far more military engagements on foreign soil than we've seen since and maybe including WW2. We have a corrupt political system and state that is in ever excessive violation of our own constitution, and a people oppressed and divided.
We really need another JFK or Reagan in terms of charisma and general popular support, if not in somewhat similar political views. Another Truman or Eisenhower would probably be better, but could never get into office today.
>The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions.
The problem is larger than secret laws. Once the culture of paying lip service to fundamental principles is set within government it becomes systemic as has already happened in the US government.
The danger then is a large number of individuals within government acquire a sense of self righteous purpose convinced of an existential threat that allows them to morally ride roughshod over the basic principles of the state, for instance to run surveillance systems.
For them citizens become ignoramuses who have to be kept in the dark, so there is no scope for debate. And who would not protest so much if only they knew all this is just to keep them 'safe'. Of course its not. A shift from accountability towards secrecy is always about the accumulation and abuse of power.
Unless they are prosecuted and held accountable in courts where their world view can be challenged in the open the culture will not change. It's important for citizens to nip this in the bud before its too late.
If this an option it's obvious why any administration would prefer to take it but it's an abdication of duty for Congress and the courts to do nothing about it.
"In this election year, as we honor our right to govern ourselves, those in power and those seeking it should affirm that a regime of secret law has no place in a democracy."
This was a darkly amusing way to finish the article. Both major candidates have openly endorsed expanding government surveillance and reducing legal protections for privacy and access to law. There's no plausible election outcome that would scale back secret law.
Right. Everybody asks if they can vote "None of the above". That's exactly the message that a 3rd party vote sends. People need to go out and have their objection counted, instead of just bemoaning the major candidates and staying home or voting for one of them.
While the two-party side effect of our voting system will likely ensure that a Dem or Rep will get in again, boosting the third parties just to hit magic 5%, 10%, 15% tiers will actually be the best use of a vote to try to change the political landscape going forward. There would be access to more funding, media, debates, and DC facilities for the 3rd parties. The 3rd parties also need to push for election process reform, to get rid of the 2-party effect. Some localities are already testing the waters in more progressive voting schemes.
This is all especially true if you're not in a swing state. If your state is already blue or red, another blue or red vote is a 100% wasted vote. Remember, you're not voting for the president; you're voting for who your state is going to vote for president. If that's already decided by a large mass of card-carrying party line voters, or by extreme public sway, that determination has already been made. Use your vote elsewhere.
We need creative destruction in the political process, and deconstructing or at least challenging the incumbent parties is the only civilized option I see. Too many people throw their hands up at Dem vs Rep, and think the only way to change that is violent revolution.
I'd prefer a system that allowed 'vote for as many as you like'. Then a 3rd party candidate could get a true vote count. If they had appeal in enough directions, they could even win.
Secret law is no law at all. Law is a contract between a people and the government. Contracts where only one party has any knowledge are by definition not contracts. Instead, this body of secret law operates completely outside of public oversight, and generally grants the government powers that public, bonafide law would ban or tightly restrict. Secret law is _always_ a violation of the social contract, and we must reject it and punish actors in government who justify it, no matter the specious ends they pursue.
I'm not defending (nor attacking) secret law but the obvious flaw to your argument from where I'm sitting is that if one has a representative democracy then secret laws can easily be a part of an open contract. We, the demos, can contract with our MPs (MEPs, Senators, etc.) to run the country in a way that they see as benefiting the demos to the greatest extent; we can contract with them to do just that. If then that beneficence includes hidden legislation there doesn't seem to be a democratic problem.
It's like if you asked your plumber to "sort your heating out" and they installed rust inhibitor without your knowledge, it's still under contract and you instructed them to act.
Of course you can insist on entirely open government. Personally I'm inclined to think that's going to lose out in some ways (inability to conduct covert investigations in to actions of criminals/businesses/states for example).
Perhaps the United States has secret law because it's one of a very small set of jurisdictions (read: pretty much only) that subjects the most classified actions to a comprehensive and deeply integrated legal framework. For some interesting reading, check out Intelligence Oversight, a toolkit, by the Geneva Center for the Democratic Control of Armed Forces[1]
The article is ridiculous. Legal interpretations are only law when they have been adopted by a court. A private legal interpretation is not a "secret law." To the contrary, every organization of any substantial size has private interpretations of laws, and those interpretations are protected from disclosure by attorney-client privilege.
'Secret law' is not law at all, and I consider it the duty of every American to expose and, if necessary, disobey it. Any legal professional participating in 'secret law' should be disbarred.
The style of government (monarchy, dictatorship, democracy, communism) doesn't really matter. The size of government (how many things government does or doesn't do) doesn't really matter. It's the scale of government that matters. When the ratio of people to decision-makers becomes too high, the decision-makers stop fearing revolution and stop caring what the people think.
Governments don't scale well. It's only a matter of time before we need to address this.
We built a distributed system of 13 servers supporting 4 million users. A century later, we had 34 servers supporting 31 millions users. There was a major desync crisis causing us to lose 600,000 users so we moved most of the processes into a mainframe turning the now 36 servers into little more than proxy servers. This kind of worked for a while.
A century and a half later we have 50 proxy servers supporting 320 millions users. The mainframe is barely responding to requests. Half of the engineers want to upgrade the mainframe. The other half want to move some of the processes back to the proxy servers.
Instead, we should be moving the app to the cloud. The problem is nobody knows what an AWS for government would look like.
What is the point of a law if it is kept secret? Doesn't secrecy defeat the purpose of the concept of having laws and of due process? How did they establish the concept of secret laws and how are these laws passed if not in secret?
In socialist countries there were many unwritten regulations/instructions - what is allowed/verboten in politics? The law would not state that explicitly because the policy of the party could change suddenly (like with the Molotov - Ribbentrop packt) and the law is not that easily adjusted. Therefore behavior was regulated by taboos - don't say anything that is not stated by the state media, better don't say anything because politics keep changing. I wonder if secret laws are a move in the same direction.
Even when they have access, lawmakers often fail to push back against interpretations that go too far. After all, they have little incentive to take on the national security establishment when their constituents are not even aware that a problem exists.
As a representative, you are there to uphold the constitution and deal with all the issues that would otherwise swamp the general public. You are not micromanaged by the people. Your general representation has been elected. We do not elect you to sit on your butt and wait for "incentives". DO YOUR JOB.
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[ 4.1 ms ] story [ 220 ms ] threadNo, but that's not what the article is about. There's an important difference between laws and orders/realtime tactical information.
But one needs to take a look at the impact the IT industry had on concentration of knowledge and power. A lot of things used to take more people and was so subject to more checks and less privacy. Today these things can be kept perfectly private.
Right now due to less than perfectly implemented systems once in a while a door to a cache of "private" information is opened. These caches contain a mixture of stuff that should have been private and stuff that really should have been published a long time ago even if somewhat embarrassing.
These leaks are destructive in the sense that they undermine the sense of privacy in areas where this is vital and also undermine the trust as it becomes clear too much is kept under the rug. It also opens the door to all sort of conspiracy pushers. It is highly problematic that the society seems to be reliant on the leaks to stay informed.
Sharing information makes one vulnerable. It is also vital to connect. Governments need to decide on how they relate to their people. Actually the people need to tell the governments what is acceptable and what not...
Yes, and we have the technology now to stream it live. If someone feels entitled to spend my money and tell me how to live, it's the least they can do.
Soldiers, as far as I understand, are not technically public servants. But correct me if I'm wrong.
How can we get the populous to care, but more than just a 30 second "oh that's not good" then resuming with their normal life?
I don't think there's a quick and easy solution. Everything's not going to be changed overnight--even if we all agreed on what the final state should look like. I'd like to think we can figure out ways to move forward in the direction we generally want to go, knowing that it'll take a while to get there.
I do think only waiting is going to make things worse, harder to change as time goes by and the current situation becomes even more entrenched.
There are multiple projects here, too. One is to increase transparency. Another is to identify common goals that have support across the divides we currently see. I'm sure there are others. Identifying common goals and building support is something I don't think we need to wait for.
I apologize if I've put words in your mouth. Please correct me if I have.
Edit: Added thoughts on actions to start now.
We are probably less than a couple decades away from a 1984-like dystopian future, or a very large scale block of civil unrest and domestic warfare. The increasing separation of classes combined with the duplicitous nature of politics and corporatism in the U.S. (let alone through the world) can not be strained much further without one of those results taking hold.
However, everybody has wanted and continues to want to have their fingers in the federal pie, and that makes it much harder to pull away given how much everybody is now dependent on and intertwined with them.
But there is 1 interesting precedent being set: Legalization of marijuana. It is still federally illegal to use/possess/sell it, but states have rejected that and set their own standards. I don't think they can stop the feds doing raids within their borders, though, so it's not a total repudiation.
It's a perpetual, boundless war fought on our behalf. It's too bad Congress can't find a way to permit this activity in some limited fashion without just ignoring it (congress please RTFM: Article I, Section 8, Clause 11). This sets a horrible precedent for future presidents. We have ceded enormous discretion to the executive here. It seems prudent to have a ton of oversight and disclosure surrounding programs that allow for execution of individuals, regardless of where they live.
Footnote: Rep. Lincoln (regarding conflict w/Mexico over disputed Texas): "The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood."
And by imminent, I mean the actual dictionary definition of imminent, not "Obamalang" imminent:
> In addition to conducting airstrikes against Isis is Syria on Tuesday, the Obama administration also announced it had also targeted the “Khorasan Group”, a separate al-Qaida-linked terrorist organization. They justified it by claiming that the group was plotting an “imminent” attack on the US. Before last week, hardly anyone had heard of the Khorasan Group (in fact, even their name was classified), so it’s difficult to judge from public information just how threatening their alleged plot really was. But when you add in the administration’s definition of “imminent,” it becomes impossible.
> Take, for example, this definition from a Justice Department white paper, which was leaked last year, intended to justify the killing of Americans overseas:
> [A]n “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.
> To translate: “imminent” can mean a lot of things … including “not imminent”.
https://www.techdirt.com/articles/20140924/17360528630/obama...
We have the War Powers act. We have the AUMF. We have funding bills both for equipping our armed forces and for operations. We have the gang of 8 notifications of covert action. This is just off the top of my head. What sort of limited oversight are you looking for?
This is best exemplified by our nuclear chain of command. The President has unquestioned power to launch nukes. This applies irrespective of whether we are launching first.
That is, the President's order is necessary, but not sufficient. I think generally this sort of restriction to a single actor suggests an extraordinary level of restraint as a country, rather than discretion. Other actions which require Presidential level direction are drone strikes and cyber attacks.
Two people (in one branch) to authorise, but still one'a decision needed.
"It is part of the general pattern of misguided policy that our country is now geared to an arms economy which was bred in an artificially induced psychosis of war hysteria and nurtured upon an incessant propaganda of fear. While such an economy may produce a sense of seeming prosperity for the moment, it rests on an illusionary [sic] foundation of complete unreliability and renders among our political leaders almost a greater fear of peace than is their fear of war." (D.W. Eisenhower)
"In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power exists and will persist." (D.W. Eisenhower)
He was absolutely right, and I'm not sure that there's a realistic way out of the decades-deep hole we've been digging for ourselves. Especially when you consider that we appear to switch our brains off in the wake of any significant terror attack, it seems hopeless.
I agree but we must admit that it's terribly difficult when faced with terrorism to consider the proposition that doing nothing might be better than any action. Harder still is to make the claim in front of politicians who might consider that an opportunity to spin it into a weakness rather than a strength.
One would think people in "the land of the free" wouldn't act like either scared rabbits or enraged bull.
I'm not either. I think broad-stroke laws reversing much of the damage are necessary.
We need a law prohibiting secret law. Any legally-binding statute, regulation, opinion or judgement that is not published to the Federal Register within 18 months would be rendered invalid.
Regarding government documents in general, I think everything should be published by default. Instead of FOIA applications to have information published, agencies should be applying to keep their documents secret.
The federal agencies continually avoid the Federal Register by issuing 'guidance letters' and 'advisory opinions', as well as re-interpreting existing rules in very creative ways. What is really needed is greater fidelity to the structural protections by the constitution (such as the Bill of Rights and non-delegation), but I have lost almost all hope of that coming to pass.
Yes, Chikasu's broad-stroke laws can only work if they are part of a cultural shift away from seing micromanagement as the government's job.
The agencies are what they are from the mentality that everything in our society must be "run" perhaps by a "czar". People call this regulation, but in order to run things, the authorities need not laws and predictable rules, but arbitrary (if scope-limited) powers.
The people who are writing these laws by another name (guidance letters, recommendations, etc) are nameless, faceless people who no one will ever know. And unless it's an official "memorandum of understanding" or similar, we won't even know their names.
The people we see and hear in the news are just the distraction so we miss the real show.
Unrepresented -> Corruption -> Money -> Corporate Influence -> Gerrymandering / First Past the Post / Term Limits -> Whole election system is fucked
The way the US, and most other governments, are organized is broken because of a lack of humanity. If you try having one person represent millions, those millions will always be numbers to anyone, and that person will just be a name on a ballot to the numbers. Real representation requires a personal relationship, and that means you need to build government on the foundation of your community first. I generally see every position added to the ballot as a failure of a republic, because what you really should be doing is electing, say, a regional council (using STV or other proportional voting systems) whom then both nominates higher offices and appoints everything you would normally have on the ballot. Because that is their job, and you would not be picking between the lesser of two evils on a ticket but one of a few hundred of your neighbors who is exemplary who would do the best job.
Most people I know, at least in less dense neighborhoods (and community interaction in cities and dense living always has been problematic) can name someone who lives around them they would want to represent them in government. And you are much more likely to have reason to trust, and hold responsible, your neighbor than some guy who lives in the richest part of the city, state, or country and whom you will never meet in person, and they will never know you to give a damn about your liberty.
As we see here: https://en.wikipedia.org/wiki/United_States_congressional_ap...
It is constitutionally provided for to have ~30k citizens per critter. But congress is left to determine how many critters there should be. Providing more critters, and thus less people per critter would reduce the amount of power they wield individually, thus there are absolutely perverse incentives at work to keep our congressional representation as citizens to a minimum.
While we're at it, could we make this hypothetical government's legislature use a fractional (or maybe one-citizen-one-vote) tally, with representatives acting as proxies that individuals could override for specific votes?
Just think about the general issues of a HOA gone bad and how hard it can be to deal with it without great personal cost. That is the problem of micro government in a nutshell.
Scalable government is a hard problem in general.
You would need a way to make local law not geopgraphically local but ideologically local. I would love to hear ideas on how you could ever manage that, but my proposition sacrifices some of the humanity potential (if you are voting STV for a local council in a town of 3,000, and have 10 members, in theory each member represents 300 people but nobody will personally know all 3,000 and thus is limited in candidate to whomever they do know, or worse, someone they take at face value like they do today). You lose quite a bit of democracy there, in that some people probably will not have a candidate they like - there are certainly more than 10 distinct political viewpoints in 3,000 people.
But I'd also think such systems would promote people to live with the like minded. If you disagree strongly with your neighbors... you are probably in a bad neighborhood for your own good and happiness. Surrounding yourself with enemies in your daily life provides a fulfilling life to few. But that goes down a deeper rabbit hole of people not considering nuance in where they life - they place work and profit ahead of all else, and will prefer a trash bin in the Bay Area over less lucrative ventures elsewhere they can have a more fulfilling life in general.
I am not American, and much less an expert in law, but isn't this already illegal? From what I gather, American law ultimately rests on the same western civilization ideas that already come from the Roman Empire and before. Surely your constitution or other fundamental laws should already cover this, or am I wrong?
If your house's foundation (the Constitution) is crumbling, do you continue to build on top of it (laws) to keep the house from collapsing?
I do agree that for most discussions around US Federal government, the Constitution does not play an ethical or legal role.
To me this is one of those statements that might sound superficially wise, but hides something very dark. Yes, if you take the analogy literally, it seems foolish to build on crumbling foundations. But that sort of literalism might be silly here.
What do you mean by "crumbling"? The entire project of a democratic republic lies on the collective respect for a set of rules that provide the scaffolding for all power to be granted by the people, according to the will of the people, to do what the people think is best for them. Right? That's the whole idea of government in the American sense, correct?
Now if the political class starts to ignore some of the ground rules (which is equivalent to taking power for itself), and nobody prevents this, can we claim that the democratic republic maintained its integrity? Or was democracy itself eroded? And if the answer to this last question is yes, how can one defend that the moral choice is to just accept it? Shouldn't we obviously demand strict observance of the ground rules, so that the legitimacy of those who exercise power in our name is unquestionable, before anything else? And then try to change the ground rules if the majority feels that they no longer serve us? And then strictly observe the new rules so that legitimacy is not compromised, and so on? Or am I just crazy?
Obviously a country is not a house, and countries have been very successful with only a single constitution (America) and with many (France). But generally changing constitutions frequently does not make for a politically stable state, and much in terms of quality of life rests on political stability.
1) The federal government is one of enumerated powers, but it has plenary authority over areas it is allowed to regulate. The Constitution gave the federal government the power to tax, spend, and "regulate interstate commerce." In a world where interstate commerce is pervasive, giving the federal government those powers allows it to do almost pretty much everything. But those are the words on the page! Just because the result might have surprised framers who were thinking about independent agrarian farmers for whom an interstate transaction might be the rare exception does not mean you can ignore what the words on the page mean.
2) As to agencies, the Constitution creates an executive, and contemplates the existence of executive deparments. The first agency, the customs service, was created by the first Congress in 1789!
3) The Constitution prohibits only "unreasonable" searches and seizures. That implies the power to search and seize. And the idea that warrentless searches are presumptively unreasonable is as much a judicial-created gloss on the Constitution as the idea of exceptions to the warrant requirement. Remember: the very first Congress created a scheme of warrantless searches by the Customs Service.
4) The non-delegation principle is itself a judicially-created concept. It's not in the Constitution.
5) The 10th amendment never meant anything. It literally says "any power not granted to the federal government is reserved to the states or to the people." It doesn't provide any basis for deciding what those powers are. Take something like Obamacare. If that's a legitimate exercise of of the taxing or commerce power, it by definition cannot violate the 10th amendment because it's an exercise of an enumerated power. And if it wasn't a valid exercise of those powers, it's void for not being a valid exercise of an enumerated power. The 10th amendment can never be the reason a law is invalid.
2) Customs was a power given to the federal government, as it was the primary method of taxation, and regulation of international commerce.
3) The ratifiers of the Constitution were most concerned with preventing general warrants, as had been commonly issued by the British as a tool of invasive monitoring and oppression, and the Fourth Amendment was included to prevent these practices. The warrant-less searches we see today are operating in a manner similar to the general warrants, but without even an explicit general warrant.
4) The Constitution has no provision allowing for Congress to delegate any criminal, civil, or regulatory law or rule-making, thus such delegation is un-enumerated and impermissible. The president only has the authority to "take Care that the Laws be faithfully executed", and not even to exercise discretion in an arbitrary fashion.
5) The Tenth Amendment is simply an explicit statement that all powers not explicitly mentioned in Article I, Section 8 are out-of-bounds for the federal government.
2) Nothing in the Constitution gives the federal government power over "customs." It gives Congress the power to "collect duties." Clearly, Congress interpreted that in 1789 to mean it could create an agency to administer the collection of duties. But that same reasoning applies to any other agency, when the subject of that agency's duties involves an enumerated power.
3) General warrants gave authorities the right to go into peoples' houses and search them for contraband with no probable cause. Warrantless searches we see today do not allow the government to do that. Also: the Constitution doesn't say anything about general warrants. It just prohibits "unreasonable searches." What is there in the text of the Constitution to say that an warrantless exigent circumstances search or a border search is "unreasonable?" Besides your own opinion?
4) The Constitution "vests" legislative powers in Congress. The non-delegation doctrine interprets "vests" to require Congress to exercise those powers itself, but nothing about the words requires that construction. E.g. Article I gives Congress the power to "collect taxes." Obviously Congress can delegate that authority--the Constitution clearly does not contemplate Congress itself going out and collecting taxes.
5) No, the 10th amendment says "the powers not delegated to the United States by the Constitution" are out of bounds for the federal government. But the 10th amendment isn't what makes that true--it's inherent in the design of the Constitution. So any 10th amendment issue is really a fight about what was "delegated to the United States by the Constitution."
2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution.
3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'.
4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do.
5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.
Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.
Yes, I agree that the states were not delegated all powers not expressly delegated by the constitution, but "the people and the states" were. I have never heard a better explanation for the 10th amendment than to say that it was restating the enumerated powers doctrine (though I cannot recall where I first heard that explanation). If you have a better explanation of the 10th amendment, I am very interested to learn what it is.
Regarding your second point: the change was not "states" vs. "people and the states". The change was whether the rights referred to were solely those expressed in the Constitution, or something broader. Broader won. This is an argument you are going to need to take up with the authors of the Constitution, because they do not agree with you.
On the one side you have the "But the Framers didn't have machine-guns, or CRISPR." On the other side you have people who would ask "So I don't actually have a right to use strong encryption? I don't have a right to build a rocket? I don't have any rights that were not imagined by the Framers? All new inventions have to be allowed before they can be used?"
Otherwise anything could be "necessary and proper."
So, let's have a hypothetical about something really fundamental: If I could CRISPRize negligible senescence, or superintelligence, do I have the right to do it?
Do you have the right to use strong encryption? If you can fit it into a right the framers would have recognized based on English law and tradition (probably free speech), then yes. If not, then no. The 10th amendment has nothing to say about that.
Fundamentally, the Constitution is not really about "rights." The Bill of Rights was added to appease those who were worried the central government would impinge on the traditional rights of Englishmen. But the real purpose of the exercise was to create a powerful, but democratic, central government that had the authority to do the things that needed to be done.
To be precise, the 10th amendment is a nullity if you already accept that the federal government is one of enumerated powers. At the time of the founding, that was a novel concept and it probably made some people feel better to have it stated explicitly. But today that's taken as a given. The debate is never over if the government has powers not enumerated, but whether a particular action falls within the scope of an enumerated power. And the 10th amendment tells you nothing about the scope of the enumerated powers.
We don't need a law for that, because non-public directives already don't have the force of law. Agencies already go through an extraordinarily involved process any time they make binding legal obligations. They are not only published, but usually the subject of notice and comment procedures and are subject to extensive judicial review.
Those processes don't apply to what the article is talking about, because the article calls "law" what is actually legal advice to the government about what is legal or not under existing laws. Like any organization, the government has counsel. The government asks that counsel "can we do this?" The answers to those questions are not law, they're legal advice.
Those categories include national security directives, OLC legal interpretations, congressional-executive agreements, immigration court proceedings, FISA court opinions that have "set the legal terms for mass surveillance programs" and bills that "incorporate provisions of classified reports by reference, bestowing on them the status of law."
https://www.brennancenter.org/sites/default/files/publicatio...
I think we need a law to ensure that all such documents are published in a timely manner.
Immigration court proceedings are secret, but they're not an exercise of law making. Neither are FISA court opinions, which are interpretations of whether something is legal under the 4th amendment and/or FISA.
Now, you can say it would be great if these things were all public. I happen to agree. But internal directives and policies that are only binding on the government are not "laws." They're not an exercise of the government's power to regulate private conduct. They're an exercise of the government's power to control how government bodies use their discretion.
> Now, you can say it would be great if these things were all public. I happen to agree.
In any case, we're agreed on the main point of the article and the point of my original comment.
Do you think that given the potential impact on such issues as torture, extrajudicial killings, and mass surveillance, this growing body of "secret law" should see the light of day? This is the key question.
Are the General Orders of the Chicago Police Department --- the giant binder of rules the CPD sets for the conduct of its employees --- law under this definition?
If an elected official cites an OLC opinion as justification for torture in front of a judge and has a fighting chance of being vindicated, then I consider that OLC opinion to have the "force of the law" irrespective of any conventional technical definition.
In any case, the argument over semantics is uninteresting.
The key question posed by the report and upon which my original comment hinges is whether or not the directives, opinions, judgements, and bills informally described as "secret law" should be made transparent.
I think they should. I don't know what you think because you didn't respond to the question.
Government officials probably cannot cite an OLC opinion in court in front of a judge as justification for torture. That's what my first comment on this thread pointed out. OLC opinions do not create binding precedent, any more than Wesley Snipes's tax lawyer's opinions did for his case.
Look at the scare du jour, ISIS. I mean, come on! We have the worlds largest military by a factor of 10, and yet people are peeing their pants at the sight of a few gun-toting crazies 8,000 miles away!! We faced down USSR which had the capability to annihilate us 100 times over, and yet we cringe at the sight of ISIS. What's wrong with these people?
It's not a mistake that any level of provocation by Russia is met with weeks of saber rattling and outrage in the media.
Although ISIS is a good driver for expanding the intelligence community. Hillary Clinton's primary military strategy that she promotes on her website is expanding an already bloated intelligence community and broadening intelligence collection. Both candidates are very much industrial complex friendly. That's one of the few things that's certain in this election.
But it is - the US military fought the Taliban in a landlocked country with F18s launched from aircraft carriers 200 miles away!
Sadly, they underestimated the ability for power to entrench itself despite term limits, separation of powers, federal/state split, etc.
"Shock Doctrine".
Given the influence the state has on the media, it's nearly impossible to blame the electorate. They exist in a media bubble that makes these state-sanctioned power grabs seem reasonable, even cost-free.
By the laws of the nation, it could not be enabled any other way.
They can't do this without the consent of the governed. You give consent when you vote for a politician who has supported this form of government because they're a member of your party, or running against the party you hate. You give consent when you quietly accept this, or ignore this. You give consent when you vote for the lesser evil, since you are still voting for evil.
Don't vote for the establishment, it's proven to be untrustworthy, irrespective of party. Write your representatives about this, pay attention to who you vote for at every level. Secret law is a huge step towards despotism, so basically, don't vote for anyone who has supported it in any way. This may mean you don't cast a vote for anyone depending on where you live.
I prefer to look through the lens of expected value. How can you vote in a way that maximizes the chance that your preferred policy outcomes will go through? "Don't vote for anyone who has supported it in any way" is nice in theory, but there are plenty of times when a vote any other way has lower expected value.
EDIT: Just looking through the abstract I agree that it is a very scary assessment.
Abstract:
National security policy in the United States has remained largely constant from the Bush Administration to the Obama Administration. This continuity can be explained by the “double government” theory of the 19th-century scholar of the English Constitution, Walter Bagehot. As applied to the United States, Bagehot’s theory suggests that U.S. national security policy is defined by the network of executive officials who manage the departments and agencies responsible for protecting U.S. national security and who, responding to structural incentives embedded in the U.S. political system, operate largely removed from public view and from constitutional constraints. The public believes that the constitutionally-established institutions control national security policy, but that view is mistaken. Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal. Absent a more informed and engaged electorate, little possibility exists for restoring accountability in the formulation and execution of national security policy.
I am not sure I can agree with this. Whether knowingly or not, Eisenhower coined the term "military-industrial-complex" (MIC) and to me this is a form of disinformation, and unless one is willing to ascribe extreme naiveté to General Eisenhower, disingenuous.
The MIC is the visible portion of a larger complex. The correct term (since his warning was issued post OSS and CIA) is the Military-Intelligence-Complex. And the industrial part is merely the means for the governing plutocracy to milk the national treasury, and, reward the faithful servants of the powerful interests. And unless we are to assume that we have indeed been living under a secret military goverment since WWII, the military of this nation is supposed to take its orders and direction from the civilian authorities.
Secrecy is the domain of spooks.
That said, I also find it 'interesting' for the "august" New York Times to opine regarding the "unsettling" character of the current American regime at such a late date. Where were the ladies and gentlemen of the New York Times editorial board in 2001 when Patriot Act passed without a nod towards even a sham attempt at deliberation?
An entire generation of Americans has been born and raised to adulthood since 2001, and no doubt, just as they find the internet and web to be a 'natural' aspect of life, they likely find nothing objectionable to "secret laws", "warrantless" action by the government, "torture", and the rest of that sordid and entirely unAmerican (at least to this old fogey) laundry list of creeping authoritarianism.
As I skimmed some of the comments in this thread, I also noted that the general theme of corrective actions that are suggested seem to place an unreasonable emphasis on architectural aspect of the system.
But we already had and have standing laws on the book. What, pray tell, would further emblemishments to the constitutional order achieve when existing laws are 'cleverly' circumnavigated and the constitution treated as a dead letter?
A people can not be saved from themselves.
America used to produce a people whose mother's milk was Liberty. The current actors in our system that knowingly and willfully distort or disregard standing laws (such as the War Powers Act) are either America's own sons and daughters or we have been literally subverted by a foreign people whose mother's milk was not and is not and will never be life, liberty, and pursuit of happiness (for all).
The long term, and strategic, response to this malaise is simply this: every single one of you who has children must instill the essential American Values in your children. For unless we are indeed not only subject to secret laws but also to secret occupation, then it is our children, our sons, and our daughters who vie with one another in finding clever ways to trample the American Social Contract underfoot.
Now that the world is ruled by Russia, China, India and others, this is a distinct possibility if the people of America don't get their shit together and start being builders rather than destroyers.
It is a serious cultural revolution happening world wide.
In some cases, if a statute says: "All pens must be blue", and the administration's attorneys study the statute and determine "When the congress said that pens must be blue, we understand that they meant to say black", and they then make that determination secret. The outcome isn't secret law, but secret meta-law.
Secret Interpretations of Laws
Secret Courts
Secret Warrants
Secret Court Orders
Secret Arrests
Secret Trials
Secret Evidence (not made available to the defense)
Secret Convictions
Secret Prisons
Secret "enhanced interrogation" programs
Gee, it sounds like we've become everything we were fighting against in the previous century.
But it keeps the money flowing.
Next after the military industrial complex is the for-profit prisons. Vacant cells mean lower revenue and thus degrade profits, executive bonuses and shareholder value. Our education system needs to be geared to produce just enough inmates to occupy the for profit prisons, and enough productive workers to pay for both the for profit prisons and military industrial complex.
You can definitely have secret warrants. How could you not? Imagine if the cops had to publish the details of wiretaps. What use would they be? Nevertheless, the secrecy must be justified and approved by a judge every few months.
How did those criminals get to be that way, hmm?
It's not like they make all of that money off of ... kidnapping. Or robbery.
It's drugs. They make the money from selling substances that are illegal briefcase of our insane, failed drug policy. These criminals would not be so wealthy if drugs were legal. That's a simple, straight up, undeniable fact.
Secret prisons - CIA black sites, Chicago detainment center
Secret warrants - FISA warrants are almost never rejected, and I'm not sure they need to be reapproved in general. They are almost never declassified, even after the wiretap is completed.
Edit: It's amazing that I'm being downvoted for a factual response to "Troops on the ground in sovereign nations without a declaration of war?"
As it stands we have far more military engagements on foreign soil than we've seen since and maybe including WW2. We have a corrupt political system and state that is in ever excessive violation of our own constitution, and a people oppressed and divided.
We really need another JFK or Reagan in terms of charisma and general popular support, if not in somewhat similar political views. Another Truman or Eisenhower would probably be better, but could never get into office today.
Most of NSA's warrantless surveillance was probably technically legal, or at least did not constitute mens rea, but that doesn't make it any better.
No, you are being downvoted because apparently you have been living in a hole for the past 15 years.
-JFK
but the facts do not disagree with my statement very frequently
The danger then is a large number of individuals within government acquire a sense of self righteous purpose convinced of an existential threat that allows them to morally ride roughshod over the basic principles of the state, for instance to run surveillance systems.
For them citizens become ignoramuses who have to be kept in the dark, so there is no scope for debate. And who would not protest so much if only they knew all this is just to keep them 'safe'. Of course its not. A shift from accountability towards secrecy is always about the accumulation and abuse of power.
Unless they are prosecuted and held accountable in courts where their world view can be challenged in the open the culture will not change. It's important for citizens to nip this in the bud before its too late.
So where to from here?
This was a darkly amusing way to finish the article. Both major candidates have openly endorsed expanding government surveillance and reducing legal protections for privacy and access to law. There's no plausible election outcome that would scale back secret law.
While the two-party side effect of our voting system will likely ensure that a Dem or Rep will get in again, boosting the third parties just to hit magic 5%, 10%, 15% tiers will actually be the best use of a vote to try to change the political landscape going forward. There would be access to more funding, media, debates, and DC facilities for the 3rd parties. The 3rd parties also need to push for election process reform, to get rid of the 2-party effect. Some localities are already testing the waters in more progressive voting schemes.
This is all especially true if you're not in a swing state. If your state is already blue or red, another blue or red vote is a 100% wasted vote. Remember, you're not voting for the president; you're voting for who your state is going to vote for president. If that's already decided by a large mass of card-carrying party line voters, or by extreme public sway, that determination has already been made. Use your vote elsewhere.
We need creative destruction in the political process, and deconstructing or at least challenging the incumbent parties is the only civilized option I see. Too many people throw their hands up at Dem vs Rep, and think the only way to change that is violent revolution.
It's like if you asked your plumber to "sort your heating out" and they installed rust inhibitor without your knowledge, it's still under contract and you instructed them to act.
Of course you can insist on entirely open government. Personally I'm inclined to think that's going to lose out in some ways (inability to conduct covert investigations in to actions of criminals/businesses/states for example).
[1] http://www.dcaf.ch/Publications/Overseeing-Intelligence-Serv...
1. Secret global and domestic surveillance.
2. Secret application of war powers.
3. Secret assassination programs.
4. Secret courts with secret warrants.
5. Secret torture programs.
6. Secret prison systems and secret "extraordinary" rendition.
7. Secret compulsion letters for secret military and intelligence efforts.
8. Secret deportations with a public relations face saying the opposite.
9. Secret sabotage programs.
10. Secret intelligence involvement in the production of US media.
11. Secret censorship of domestic protests.
12. Secret trade deals with secret foreign policy objectives.
13. Secret nuclear deals with historic US enemy states.
14. Secret transfers of money overseas.
15. Secret arms support overseas of groups in Syria.
16. Secret meeting in the Congress (the most of any president in the history of the country).
17. Secret interpretations of law.
18. Secret investigations of civil and human rights allegations.
Governments don't scale well. It's only a matter of time before we need to address this.
We built a distributed system of 13 servers supporting 4 million users. A century later, we had 34 servers supporting 31 millions users. There was a major desync crisis causing us to lose 600,000 users so we moved most of the processes into a mainframe turning the now 36 servers into little more than proxy servers. This kind of worked for a while.
A century and a half later we have 50 proxy servers supporting 320 millions users. The mainframe is barely responding to requests. Half of the engineers want to upgrade the mainframe. The other half want to move some of the processes back to the proxy servers.
Instead, we should be moving the app to the cloud. The problem is nobody knows what an AWS for government would look like.
Even when they have access, lawmakers often fail to push back against interpretations that go too far. After all, they have little incentive to take on the national security establishment when their constituents are not even aware that a problem exists.
As a representative, you are there to uphold the constitution and deal with all the issues that would otherwise swamp the general public. You are not micromanaged by the people. Your general representation has been elected. We do not elect you to sit on your butt and wait for "incentives". DO YOUR JOB.