So you DO care about the legality. Great. Then don't say it's "irrelevant".
You and federal judges have a different view of the law. You're just assuming yours is right? Ooookay.
There are several levels of "legal," and the heart of the matter has always been on the
ultimate legality (rightness or wrongness) of what the government is doing as opposed to the technical legality provided by subordinate legislation and interpretation by law making bodies and/or courts. Don't even pretend like that's my argument because you know it's not. I'll state it again, in the simplest terms I can:
The Judicial powers enumerated in the Constitution stop at interpretation of the law. Interpretation itself can be a form of law creation only insofar as judicial review allows a law to be changed. This equal application of the law to the facts of each case is the process by which we end up with "case law", which is essentially a series of best practices logically and equally applied to all scenarios without regard to special interests. Lower court decisions can and often are appealed to higher courts for additional review. This process serves to filter and refine what eventually ends up in case law, with the Supreme Court serving as the final court of appeal (for a time; the Supreme Court has also been known to reverse earlier decisions). The Constitution specifically allows for judicial review and a system of case law in this manner.
The FISA court is under no such process of review or appeal. The same rules for representation do not apply due to the secret nature of the subject matter the court deals with. There is no "filter and refine" process, which has given the court and its appointee near
carte blanche to write case law as it sees fit, which is further protected from scrutiny and review
because it is secret. It issues orders that are secret, along with gag orders on those orders
that are also secret, further removing any scrutiny from its actions.
So when you ask me about the legality of a government agency with the capability of violating the hell out of my Fourth Amendment rights getting permission from a notionally illegal court to do so, all I can say is "it really doesn't matter." They are going to do it anyway if they want to and I am quite literally powerless to stop it. Can I talk about the inherent rightness or wrongness of such an act on their part? You betcha. In fact, I'll return to my original statement and repeat that
legal and
illegal are merely the societal codifications of
right and
wrong, and by several standards, many collection methods (and targets) of the NSA are
wrong. But, you know, only if you don't like the idea of an Orwellian Big Brother.
To put it another way.... the 2003 invasion of Iraq was legal. And so was the bombing of Nagasaki and the gassing of the Kurds. And so was the suspension of
habeus corpus during the Civil War. And so was the invasion of Poland by the Nazis.
You want to get hung up on technicality; I have no interest in such sophistry.
Right and
wrong are of interest to me.
In your interpretation of the law. Not in the interpretation of those with the legal education and position to interpret the law, though.
That's not even contemporarily true:
Court Considers Suit Against NSA Phone Surveillance - WSJ - WSJ
I think it's in the fine print.
You believe there is hidden language in the Constitution that allows for
secret case law?!?
There's nothing in the Constitution about the EPA, either. Great.
You're right. There isn't. In fact, a strict interpretation of Article I, Section One states that no regulatory agencies are allowed to exist because Congress is not allowed to delegate powers. However, 1928 case law says Congress has an implied power of delegation so long as they provide an "intelligible principle" to guide the Executive branch. This is, of course, to place expertise in the position to be useful while not bogging Congress down with specifics (namely science) that is beyond its ordinary legislative purview. But even so, the Constitution sort of exists, as a document,
specifically to forbid things like all powerful, appointee run, unchecked authoritative bodies that operate in secrecy and with total impunity from the citizenry.
So, there's that.
And? You could add another layer and then complain about that, too. We could do it infinitely. "Who oversees the overseers of the overseers of the overseers!?!"
As of right now, there isn't even one overseer. There is a second chance advocate of sorts for the Government (the only people who petition this court for anything) that serves to review if a denial for a warrant was warranted (pun intended) or not, but there is no real appeal for those who are affected by orders from the court. Previous decisions (which is how case law is created) are not available to the public, so even if(!) you could get a private lawyer for representation with all of the proper clearances, the court operates under what are, essentially, secret rules of conduct, which means the FISA court issues itself a rubber stamp every time it wants to do anything and you can't even look up previous cases to see if the court is operating under an equal application of the law to the facts of each case.
lol that's not how it works, no. NSA falls under the Department of Defense. FISA falls under the Department of Justice. You can't get around that fact.
The NSA audits itself. It gets some permissions and guidance from the FISA court as to what and how, but there is no other agency tasked with making sure the NSA is following the guidelines FISA says it can operate under.
Let me say that again in slightly different words:
The NSA operates under rules that the NSA writes, and the NSA makes sure the NSA is following the NSA's rules.
I'm still finding it hilarious that people can't type the words "What NSA does is legal." Either they argue that legality is irrelevant, or they argue that it just shouldn't be legal, because they know constitutional law better than federal judges. Or sometimes, as we see with you, they argue both at the same time: whether it's legal or not is both irrelevant and...it's illegal and that's important. If it's irrelevant, why argue about it?
I don't play thumb war. You're trying to get me to say "it's legal" in some way, shape, or form, so you can spike a strawman football and refuse to engage in the totality of the debate. If something is unconstitutional, it is inherently illegal; if something is protected from the scrutiny of judicial review, it cannot be considered constitutional since it isn't subject to the system of checks and balances the Constitution provides and requires; such a thing is inherently unconstitutional, and thus illegal,
by default. I don't care if a legislative body passed a law that so clearly abrogates the language of the Fourth Amendment; I can argue the
wrongness of such a law all day long without once referring to any non-indelible, contemporary interpretation of its supposed legality.
Unless, of course, you want me to agree with you that the Nuremberg laws outlawing the marriage of a Jew to a non-Jew were
legal... but I have the feeling you're ok leaving that one in the realm of "technicality".