Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

Parent Full thread

Even Henry VIII had to come up with a plausible legal justification for breaking with the Catholic Church.

Being "bound by the Bill of Rights" does not mean that the government must give effect to the broadest interpretations of Constitutional protections. It only means that it must follow clear dictates when they exist, and offer plausible legal constructions when they don't. What we've learned about the NSA programs indicates that the government internally tries to toe what well-defined lines exist without crossing them. Otherwise, we wouldn't be talking about minimization procedures or the distinction between data and metadata.

This article is a great example of the concept. If a police officer walked by your farm in 1789 and saw smoke from a fire, it would not be protected by the 4th amendment. It's totally reasonable for the government to argue that the same principle allows them to observe infrared emissions from inside a house, and it's totally reasonable for the Supreme Court to conclude otherwise. It only becomes unreasonable if the government ignores the dictate once the rule is clear.

> What we've learned about the NSA programs indicates that the government internally tries to toe what well-defined lines exist without crossing them.

?? Is this before or after Clapper lies under oath to congress? is this before or after the Senate Torture report came out along with the revelation that the NSA tampered with evidence.

I struggle to understand how you rationally form such a conclusion. We only know this occurs because of a whistle blower who his own government now calls a fugitive. You truly believe the government constrains itself and follows the law in "well-defined lines", I really struggle with taking you seriously, the government has greatly warped common sense -- do you recall the torture memos, the strange legal reasoning that calls torture "enhanced interrogation techniques", do you believe the "disposition matrix" lives within well-defined lines? How would you even know sense so much of even the LEGAL reasoning is secret and above purview.

Outrageous dangerous claims you are making and it is disgusting.

We live in a world where the government can drop a nuke on Japan, vaporizing tens of thousands of civilians (including some American POWs), and that's 100% legal. What exactly is "common sense" in such a world, and why does waterboarding or drone strikes run counter to that "common sense"?

The Constitution invests the executive with tremendous power to act in the interest of national security. That was one of the overriding purposes of the document, one written in response to the earlier federal government's failure to put down internal rebellion. That is, like it or not, one of the clearly-defined lines.

>We live in a world where the government can drop a nuke on Japan, vaporizing tens of thousands of civilians (including some American POWs), and that's 100% legal.

hahaha, ok maybe you are just insane. How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch. Are you suggesting that during a declaration of war it becomes legal? Currently under international law that would not be legal unless agreed upon by the security council.

The Constitution limits the scope and powers of the state and invests the remainder within the body of citizens, it is meant to limit abuse of power by the government. The US government seems little interested in such restraints these days.

Are you going to defend torture as a clear well defined line the government follows, how about one part of government lying to another under oath, is that well defined, how about legal memos that are so secret they cannot be divulged, is that well defined?

0:http://en.wikipedia.org/wiki/Bush_Doctrine

The Constitution is a domestic instrument. It does not limit what the United States can do abroad, and the founders were clear that it wasn't meant to do any such thing. Indeed, the concern during the drafting was not about how to limit the government's powers abroad, but how to ensure that it could still act as a sovereign entity abroad despite being limited domestically.

> The Constitution is a domestic instrument.

The Constitution is the basis of all US government authority, it is not merely a "domestic instrument".

> It does not limit what the United States can do abroad,

Several provisions of the Constitution directly and explicitly concern what the United States can do abroad, and which institutions of the United States government are entitled to do those things, so that seems an implausible interpretation.

> and the founders were clear that it wasn't meant to do any such thing.

The founders were quite of different minds on many points, and you can often find founders on multiple sides of any issue (including matters of Constitutional interpretation.) Where's the evidence that the founders, collectively, were "clear" on this point?

> As for "international law"--there is no such thing.

The Constitutions grant of power to Congress to "To define and punish [...] offenses against the law of nations;" certainly seems to suggest that they thought that the "law of nations" was not a phrase that referred to something nonexistent.

> The U.N. is not a sovereign entity

No, its a product of treaty, ratified by the US Senate under the provisions laid out for such in the Constitution.

"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

The U.S. cannot engage in war because the Constitution says so. It can engage in war because it's a sovereign country, and waging war is a characteristic capacity of sovereign countries. Admittedly, the U.S. has entered into certain treaties limiting itself in the conduct of war.[1] But in that case, the U.S. is bound not because of "international law" but because those treaties translate international law into domestic law. And it is bound only to the extent it has agreed to be by those treaties.

[1] E.g., the Geneva Conventions: http://www.heritage.org/research/reports/2013/04/drone-strik....

> "The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality"

And the Constitution only mentions these to prevent member-states from partaking in these actions of their own accord. A 1936 ruling is a generation after the Civil War, so there is a predominate interpretation of who was actually a sovereign at the time, right?

I'm not arguing with you, I just find the topic interesting to say (basically) "we can do this because we're a country" when that hasn't always been the end-all-be-all of it.

> And the Constitution only mentions these to prevent member-states from partaking in these actions of their own accord.

No, the Constitution mentions them to assign what agents of the government have the power to do them, and the conditions on the exercise and the interrelations between those powers and other powers.

Note that, pieces of the powers related to war, peace, and foreign relations are assigned to different entities in the Constitution (some to the Congress, some to the President, and some to the Judiciary.)

Your war argument boils down to "who gives authorization and to whom".

International law is both a fairly novel and fluid concept, and as with product guarantees, grants of legitimacy or otherwise vary greatly in there effects. Much of the UN's power lies in the Secretary General's authority to give a stern talking to of those chuffing the General Assembly, subject to approval by the Security Council or veto by any of the Permanent Members.

There are numerous countries which have acted either in opposition to UN measures, or which have succeeded in blocking actions to sanction them within the UN.

There are also other international legal arbiters though their authority is not universally recognized, e.g., the International Court, or more complex arrangements under various international criminal law constructions.

All are routinely flouted.

A country could allow for itself no military or violent action -- I imagine that the hypothetical Constitution of the Jainist State might do just that. In which case the country would, by its own laws, have no legal right to offensive or defensive action causing harm.

I'm finding dragonwriter's arguments far more persuasive here.

Why do cats have the capacity to kill mice? Because they're cats. Nobody gives them the right to kill mice. It's silly to even ask the question. They may choose to do it or not. But having the capacity to do so is characteristic of their very existence.

That's basically the premise of Curtiss-Wright. It rejects the idea that the federal government requires an affirmative grant of power to exercise sovereign powers abroad, because those powers "would have vested in the federal government as necessary concomitants of nationality." The Constitution might impose a certain allocation internally about how that power is exercised, but it doesn't really purport to limit the scope of those powers in any significant way.

Put a cat in a context in which it's subject to the authority of another entity and that specific cat might well find that it is expected to behave in a specific way toward mice -- either to kill them or not. And that the cat might be rewarded and/or sanctioned based on that activity. I'm not arguing that this is a legal context, but that rights and obligations exist within a power and control context, which might or might not exist.

Regards C-W, your quoted passage states specifically "unless in respect of our own citizens". Which is to say that U.S. law, under C-W, can specifically govern the actions of the US and/or its citizens.

The recent record also seems clouded. There have been individuals whose extradition to the US has been sought (or secured) for actions occurring principally or totally outside the U.S. The case of Manuel Noriega comes to mind:

http://en.wikipedia.org/wiki/Manuel_Noriega#Criminal_prosecu...

"In April 1992 a trial was held in Miami, Florida, at the United States District Court for the Southern District of Florida in which Noriega was tried and convicted on eight counts of drug trafficking, racketeering, and money laundering."

There's also Executive Order 12333 2.11:

"No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."

http://www.archives.gov/federal-register/codification/execut...

http://www.cnn.com/2002/LAW/11/04/us.assassination.policy/in...

http://en.wikipedia.org/wiki/Executive_Order_12333

Further, your use of C-W doesn't support your previous statement: "[The Constitution] does not limit what the United States can do abroad". It simply states that there do exist powers which, even if not explicitly listed in the Constitution, would exist. Not that the Constitution could not specify, define, and/or limit such powers.

Which in fact it does -- the United States cannot engage willy-nilly in international agreements with other nations, or engage in acts of war. Both of these require specific actions of affirmation vested in the Legislature: Declaration of War by the full Congress, treaty approval by the Senate.

> How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch.

The nuclear bombing of Japan was not a pre-emptive strike. Pearl Harbor was a thing.

> Are you suggesting that during a declaration of war it becomes legal?

While there are some prohibitions in treaties in force or what is accepted as customary international law on conduct during War (though fewer at the time of the atomic bombing than now!), yes, the consequence of a legal state of war -- whether initiated by declaration or an external attack -- generally is that fighting war by any but such prohibited means is legal. Those making the case that particular conduct is not legal would need to identify the source of the prohibition.

> Currently under international law that would not be legal unless agreed upon by the security council.

Well, the UN Charter postdates the atomic bombing, but even if it didn't it does not prevent the use of force against an aggressor once war has started (though someone had to violate the charter to start the war.) See, particularly, Article 51 of the Charter.

>> How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch. >The nuclear bombing of Japan was not a pre-emptive strike. Pearl Harbor was a thing.

The OP is using the present tense(unless he edits his comments), perhaps he would like to edit what he wrote to suggest that in the past it was considered a legal action to drop a nuclear weapon on a nation the US was at war with, but if the OP continues to use the present tense I can only continue to believe he is INSANE to believe it is CURRENTLY legal to drop nuclear weapons on ally nations.

The OP never responded to what he so clearly believes are "clearly-defined lines." and he will not respond to direct challenges of 1: clapper lying under oath, 2: US engaging in torture and refusing to prosecute. We can even give a historical example, was imprisoning US citizens of Japanese decent and confiscating their property within a "well defined line" no, it was simply a government run amok with fear and hatred trying to defend itself.

Go read some more Hobbes and Locke.

How utterly disgusting, you will write that "What exactly is "common sense" in such a world, and why does waterboarding or drone strikes run counter to that "common sense"?"

You are simply a stooge, a lawyer in DC suckling at the government teat, you have the gall to defend torture as nothing but common sense. Sickening, go head and down vote me, you are worthless trash and a fascist.

Reply on news.ycombinator.com