Many Of You May Be Interested In What THIS Guy Has To Say, Re: FISA/NSA/Snowden...

[Divernan]

25. OK, Pal! Glad to rub your nose in the views of prestigious con law profs.

What legal scholars/experts can you produce to support your point of view? John Yoo, author of the infamous torture memo? Perhaps some shill from the CATO Institute? Some legal whizkid from Bob Jones University?

For your edification, let's start with Harvard - ya know, where the Prez studied con law.
Noah Feldman is a professor of constitutional and international law at Harvard and the author of five books, most recently "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices."

Feldman has a bachelor's degree from Harvard, a law degree from Yale and a doctorate in Islamic thought from Oxford, where he was a Rhodes scholar. He clerked for Justice David Souter on the Supreme Court. As an adviser to the Coalition Provisional Authority in Iraq, he contributed to the creation of the country's new constitution. His other books include "Divided by God: America's Church-State Problem - and What We Should Do About It" and "After Jihad: America and the Struggle for Islamic Democracy." He lives in Cambridge, Mass., and is a senior fellow of the Society of Fellows at Harvard.

http://www.bloomberg.com/news/2013-06-06/the-secret-law-behind-nsa-s-verizon-snooping.html

Professor Feldman observes:

That is why legal interpretation needs to be public -- because it has the same effect as lawmaking. When it is secret, we have in effect secret law. And secret laws don't belong in democratic systems. Countries that have them don't even have the rule of law. They have rule by law, which is a very different thing, when the law isn't supervised by the people but is rather used to manage and control them.

The trend of secret legal interpretations goes back to the George W. Bush administration's secret torture and wiretapping memos, which advanced outrageous constitutional and statutory claims. It extends through the secret memo from Barack Obama's legal team authorizing drone strikes to kill U.S. citizens based on executive branch "due process." The Verizon example involves a court, but it belongs to this tradition.

We should recognize that while facts may be kept secret and the application of law to facts might also be a secret task some of the time, the meaning of the law itself must always be public. Only then can We the People make sure we think it is being interpreted correctly.

The alternative to public law is the end of democratic supervision. And when that happens, well, the result is that the government keeps tabs on all calls in the U.S. All of them.

Next, let us check out the Con Law Professor at Georgetown (ever heard of Georgetown?) I'm providing a link to and excerpt from the column written on June 21, 2013, by Laura K. Donohue, a professor at Georgetown University Law Center and Director of Georgetown's Center on National Security and the Law.
http://articles.washingtonpost.com/2013-06-21/opinions/40110321_1_electronic-surveillance-fisa-nsa-surveillance

The headline reads: NSA surveillance may be legal - but it's unconstitutional.

The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

The intelligence community has a history of overreaching in the name of national security. In the mid-1970s, it came to light that, since the 1940s, the NSA had been collecting international telegraphic traffic from companies, in the process obtaining millions of Americans’ telegrams that were unrelated to foreign targets. From 1940 to 1973, the CIA and the FBI engaged in covert mail-opening programs that violated laws prohibiting the interception or opening of mail. The agencies also conducted warrantless “surreptitious entries,” breaking into targets’ offices and homes to photocopy or steal business records and personal documents. The Army Security Agency intercepted domestic radio communications. And the Army’s CONUS program placed more than 100,000 people under surveillance, including lawmakers and civil rights leaders.

From Georgetown we also have Con Law professor, Randy Barnett,writing in the Wall Street Journal. Headline: The NSA's Surveillance is Unconstitutional.
http://online.wsj.com/article/SB10001424127887323823004578593591276402574.html

All of this dangerously violates the most fundamental principles of our republican form of government. The Fourth Amendment has two parts: First, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Second, that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.

Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.