Trust The Power-Hungry

7 Jun

bush-nsa-obama-316x207This is just one of the all-too-many public officials we are asked to trust with our “metadata”.

Judge Vinson was the trial judge who presided over the most high-profile challenge to the health law, brought by governors and attorneys general from 26 states, along with other private plaintiffs.

In January 2011, Judge Vinson ruled unconstitutional the law’s requirement that individuals carry health coverage or pay a penalty, calling it “a bridge too far.” He found that the insurance mandate was so central to the law that the entire measure must be voided.

The Supreme Court, of course, later upheld most of the law on a 5-4 vote, one of the biggest high-court rulings in a generation. The four dissenters agreed with Judge Vinson in calling for the nullification of the whole law.

The renewed attention on Judge Vinson comes after he just completed his seven-year term on the U.S. Foreign Intelligence Surveillance Court, which reviews government surveillance requests related to national security investigations.

Chief Justice John Roberts appointed Judge Vinson to the intelligence court in May 2006, and his term expired last month. The order published by the Guardian was signed by Judge Vinson in April.

Here’s why Vinson’s “character” is so pertinent.

JUAN GONZÁLEZ: Shayana [Kadidal, senior managing attorney at the Center for Constitutional Rights], I’d like to ask you, specifically that issue of the FISA court also authorizing domestic surveillance. I mean, is there—even with the little laws that we have left, is there any chance for that to be challenged, that the FISA court is now also authorizing domestic records being surveiled?

AMY GOODMAN: FISA being Foreign Intelligence Surveillance Act.

SHAYANA KADIDAL: Right. I mean, you know, two things about that. First, the statute says that there have to be reasonable grounds to think that this information is relevant to an investigation of either foreign terrorist activity or something to do with a foreign power. So, you know, obviously, this perhaps very compliant judge approved this order, but it doesn’t seem like this is what Congress intended these orders would look like. Seems like, on the statute, that Congress intended they would be somewhat narrower than this, right?

But there’s a larger question, which is that, for years, the Supreme Court, since 1979, has said, “We don’t have the same level of protection over, you know, the calling records—the numbers that we dial and how long those calls are and when they happen—as we do over the contents of a phone call, where the government needs a warrant.” So everyone assumes the government needs a warrant to get at your phone records and maybe at your emails, but it’s not true. They just basically need a subpoena under existing doctrine. And so, the government uses these kind of subpoenas to get your email records, your web surfing records, you know, cloud—documents in cloud storage, banking records, credit records. For all these things, they can get these extraordinarily broad subpoenas that don’t even need to go through a court.

Doug Mataconis writes about whether Americans will protest this.

We’ll be told, no doubt, that all of this is necessary to keep the nation safe, but one has to wonder if we’ve given up far too much already and that there’s a danger that we’ll be giving up even more if we allow it to go any further. It’s an argument that remind me of a quote attributed to Benjamin Franklin that says “those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” Yes, it’s important to keep the nation safe, but one has to ask at what cost that safety will be purchased or, indeed, if the measures that the state is telling us are necessary will actually do anything to keep us safe. At this point, the burden ought to be on the government to justify not only any further encroachments on personal liberty, but also those that have already taken place. The PATRIOT Act will turn twelve years old in October. It has been renewed several times over those years. Perhaps now is the time to reconsider the amount of power we’ve granted to the government in the wake of an extraordinary and tragic event, because if we don’t take it back at some point it will never go away.

I thought cynicism directed against government, post-Watergate, post Vietnam, was hardwired. I guess my pessimism was right, just not located properly. The problem is us

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