Fear of "emotional distress" suits is why some schools have stopped using red ink to grade, or even grading all together - it might make the kids that don't do as well feel bad.
No, it isn't. The reason they've done that is because either of political pressure on school boards or adherence to particular theoretical models in education. These may be problems, but they aren't the problem you are pointing to.
Of course, the school doesn't give a damn about making the kids feel bad - they're there to teach, not reassure, after all - but they're terrified to do it because you can sue a school for anything these days.
You can sue anyone for anything, and that's not a new situation "these days". You don't have a snowball in hell's chance of winning a suit for emotional distress in the kind of situations you point to as examples, though, against a school district or anyone else.
I can't be the only one who'd rather pay a couple of bucks to watch without commercials...
The continued viability of premium cable channels despite the availability of free, advertising-supported broadcasts, suggests that there are more than a handful of people willing to pay money to watch video without advertising even where free, advertising supported alternatives exist.
To test everything evenly you need a constant situation that will not change without you manually changing it, a "real city" is the complete opposite of this. So if Tuesday you get stuck behind a bus and on Wednesday you've got the rad to yourself, the results are clearly quite different.
So you use a closed circuit that simulates city conditions in a repeatedable manner, and you have a number of different drivers and average the results. You use telemetry to make sure that the manner of driving is within certain prescribed limits for each run through the course, and discard runs outside of the range and have them re-run.
If your car isn't moving through the air, you aren't testing its mileage, since effects from air (both drag and lift) are fairly significant effects on the performance of cars, and something that real-world vehicles differ in features designed to address.
(Relatively speaking, sports cars are probably getting gypped on highway mileage from this, since lift and drag are both factors that are more significant with higher speed, and sports cars are more designed with attention to them.)
The new ratings should be more in line with what hybrid drivers are actually seeing.
Prius owners I known have always reported that their actual measured mileage was around 50mpg or a little over. That's pretty close to what you'd expect overall from the old ratings, and much higher than even the best (city) rating in the new ratings. Certainly, I'm unconvinced that the new ratings are more accurate.
But, its interesting to note that even with the changes, the the total hybrid models with comparable non-hybrids (Civic, Camry, Escape) on the list still get, in every case, better than 1.5 times the mileage of the equivalent non-hybrid in the city, and only a shade less than that overall.
There are arguments on both sides that seem to have legal merit.
The clear prohibition has been pointed to many times on this thread in response to you. You have, as yet, presented no legal counterargument, just repeated the claim that there are two sides, and that both "seem to have legal merit". But, you know, no support for that claim.
One side wants to protect America from terrorists; the other wants to protect terrorists from America. That's the basis on which I chose my side.
Yes, clearly, you choose the side that wants to protect terrorists (in the original sense stemming from the French Revolution and associated Terror) from America (the country and people), rather than vice-versa.
Here's a substantive argument: Warrantless searches were legal in the Aldrich Ames case.
Yep, they were legal before Congress created a warrant requirement for them in the foreign itnelligence context, one that already existed for wiretaps. How is that relevant, here?
See the difference? It cites historical precedent.
Perhaps some day you'll graduate to citing relevant precedent, too.
Well. Yes, but the "lawyer" who is the CPU is usually spelled "judge".
Usually, perhaps.
Reducing the legal code to practice is the sole purview of the judiciary.
Not really, there are plenty of areas where the law is applied by the other branches and for various reasons there are no remedies available (and even more where there are theoretical remedies but not practical ones) through the judiciary to the final decisions of the other branches.
The reports are that the system in question builds graphs (computer science meaning) of call patterns from pen traces (routing information, in IT terms) for phone calls. They know who certain terror cell agents are, and they watch them (probably with a FISA warrant, but that's another story), but they don't know who everybody is. The point of building these graphs is hidden node discovery. By studying the connectedness of the graph, they can find people who are [possibly,probably] part of the terrorist organization, and then go after the content of their phone calls with traditional warrants.
Um, no.
The reports are that they do this and then go after them without warrants, "traditional" or otherwise. In fact, that the very recording is through an automated system based on the connectedness. Were they securing warrants, this would be clearly within FISA. (Except that even the FISC would probably deny the warrants, since even FISA warrants still require probable cause, which such analysis would be unlikely to produce, even by a stretched definition.)
The problem is there's no clear definition as to whether this pen trace data is subject to wiretap regulations, especially if it's never viewed by a human being.
That's not true, either, it (whether it should be or not) fairly clearly is not, which is why, if the reports were generally as you describe, the system would be legally uncontroversial, though perhaps still politically controversial.
The Administration has taken the 'ask for forgiveness' approach, because if they asked for permission and it was approved they couldn't use the system at all as its approval through the legislature would have leaked its existence.
Yeah, see, the whole principle of limited government is that the citizenry, through laws dependent on the basic law, the Constitution, determine what government can and cannot do. Government may keep secrets within that legal framework, but parts of the government don't get to decide they have more power than they have been legally assigned just because they think things might work better that way. Government officers have the powers they are granted through law, not the powers they think would be convenient.
Not that, in fact, the Bush Administration has asked for forgiveness or permission.
Instead the New York Times did the leaking, and I imagine any real terror organization operating in the US has switched to disposable pre-paid cell phones since then (which they probably rotate very frequently).
Strange that so many reports of terrorism investigations both here and abroad even before this system became public reported terrorists doing that. I suspect that the NY Times revelation was not the first time terrorists considered the possibility that they might be being surveilled.
Since FISA was passed in 1978, that's almost every President since then. A consensus
The article you point to refers to authorizations of warrantless wiretapping under the conditions expressly authorized by FISA. Warrantless wiretaps for foreign intelligence surveillance purposes are expressly legal under FISA under very specific conditions. The details that the Bush Administration has admitted to of its warrantless wiretaps (unlike those of the authorizations specifically conforming to FISA by previous Presidents, which merely direct the executive branch exercise powers express in the Act) extend beyond the perimeters of the act to cover subjects and circumstances specifically excluded from warrantless wiretapping under the Act.
So, while it does apply to Chris Burke's overly broad claim that warrantless wiretapping is always illegal, it doesn't however, serve as a defense of the practice of the present administration, even by the schoolyard "everyone else does it" standard.
You don't need to make the actual framework of your justice system deliberately ambiguous to handle ambiguous inputs.
Nor did I say you did. I said that the feature was deliberate ambiguity because, while the actual framework was agreed, the details were deliberately left to be resolved in the light of experience by future actors.
If you want a system that needs to handle ambiguous inputs, then build your system so that when those ambiguities are recognized, judgements about them can be handed over to agents that can handle such inputs (judges & juries, for example).
That's how the US system handles both ambiguity of detail of the type I actually referred to, and ambiguity of inputs. So what, exactly, are you complaining about?
The FISA court was created in part for granting warrants for domestic wiretaps. No other method for obtaining such a warrant exists.
That's not true; domestic wiretaps for law enforcement purposes are issued by regular courts. The Foreign Intelligence Surveillance Court exists to issue warrants for foreign intelligence surveillance by electronic means, where such is not within the set of circumstances where, under FISA, no warrant is required.
Without a valid warrant, the search is illegal.
That is not precisely true in general (there are circumstances under which searches are reasonable under Fourth Amendment law despite not having a warrant), but under FISA, it is true of electronic surveillance under color of law without specific statutory authorization, including "foreign intelligence" surveillance without a warrant outside of the specific exceptions to the warrant requirement in FISA itself.
Care to come up with a relevant example and some case law where a court decided it was "illegal" or "criminal"?
Since no one other than the executive branch has the Constitutional authority to bring criminal charges, how on Earth would there be case law on the issue when the person who has directed the alleged crime is now, and has been since before the time the alleged crime was committed, President of the United States?
The statute, however, is clear and has been cited and quoted already in this thread (50 USC 1809). If you have any basis in the text of the Constitution, in the statute, or in the case law to argue that it is inapplicable, you can, of course, make your argument. But for some reason, I don't see that happening here. I wonder why?
I've often thought that the problem with laws is they use human language, with legal jargon, which can introduce ambiguities.
This is often not a bug, but a deliberate feature. ISTR that James Madison was rather explicit that ambiguity was left in certain areas of the Constitution so that details would be resolved through interpretation in light of experience.
I was thinking recently that instead of English, laws could be written in something like UML that clearly defines things like scope or jurisdiction, with a special dictionary of terms to clearly specify what is meant.
If human societies were digital systems with finite, well-defined inputs and outputs, than systems like this ideally suited for regulating such systems would probably work well.
Much of the problem in law is that the ideas being expressed are inherently fuzzy, not just poorly expressed.
Well, no, if you are referring to a side of either of the two substantive issues you've suggested exist, I'm not, at least not out in this little subthread that you posted the "there's 2 sides to every debate" inanity to. What I said here was that your characterization of the Amendment IV argument as separate from Congressional power to constrain the Executive argument is clearly erroneous, regardless of the merits on either side of either of those two substantive arguments themselves.
Now, certainly, being someone whose read and carefully considered the Constitution and the cases usually cited (and most of the cases those cite as precedent, and quiet a few others that touch on the issues) I do have an opinion as to what position with regard to those substantive issues that text of the Constitution and the relevant case law falls down on, but that's not what I've been discussing in this little exchange.
Neither one of us will convince anyone and it wouldn't matter if we did.
Well, you know, if you think the discussion is that pointless, no one is forcing you to participate.
Like the last poster, you apparently have "criminal" confused with something you simply don't like.
No, wiretapping under color of law outside of specific statutory authorization or court order is criminal. And by "criminal" I don't mean "something I simply don't like", I mean, "an offense punishable by fines and imprisonment under federal law". To quote from FISA (50 USC 1809):
(a) Prohibited activities A person is guilty of an offense if he intentionally-- (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. (b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. (c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. (d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.
That's just it. If it were truly a violation of the law, someone could do something about it.
That's not really true. Just because something is a violation of the law doesn't mean there is a remedy available through the legal system (there may be remedies like amending the Constitution, changing the law, impeachment, defunding operations, or voting people out of office, but since those are political remedies that don't rely on the problem involving a violation of existing law, they aren't relevant to the "if it were truly a violation of the law..." argument, since they are not a function of whether or not there is a violation of the law, and exist for all things one might dislike independently of legality.)
Exactly what does domestic wiretapping have to do with "the government and regulation of the land and naval forces"?
The National Security Agencey/Central Security Service (popularly known as "NSA") is a component of the Department of Defense directed by a three-star flag officer.
That's an entirely different argument that's much more complicated.
No, the two arguments are connected.
There's various case law.
Yes, and one factor that some of that case law points to in whether or not a search is "reasonable" under the Fourth Amendment is whether or not it is consistent with, or in conflict with, statutory controls, the latter being a factor which weighs against reasonableness.
The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to.
The Legislative branch does have the authority to decide how to allocate funds and what purposes they may be used for, and this is the annual funding bill for the intelligence community. The Executive branch has no authority spending money to do anything not authorized by the legislation appropriating the money used.
The Executive branch either has a power under the Constitution or it doesn't.
That fails to exhaust the possibilities. While in many areas of domestic affairs, where the government has Constitutional power to do things, the Executive has power only so far as authorized by Congress, in foreign and military affairs, there are many areas where the courts grant the Executive a fair degree of latitude to act unilaterally within the Constitutional powers of the government where Congress has not acted to constrain the Executive.
The Congress doesn't have the authority to take away Executive powers it didn't grant in the first place.
OTOH, it does have the authority to take away executive powers that it has granted by its inaction as well as those that it grants by its action.
This isn't fully baked yet. You need a Senate version, a conference, a final bill... wait for it... and a Presidential signature.
Its the annual funding bill for the intelligence community. Presumably, the President would like to have some authority to spend funds for intelligence purposes.
Slashdot Mirror
That's because sex is evil and nasty and sinful, and violence is just The American Way.
No, it isn't. The reason they've done that is because either of political pressure on school boards or adherence to particular theoretical models in education. These may be problems, but they aren't the problem you are pointing to.
You can sue anyone for anything, and that's not a new situation "these days". You don't have a snowball in hell's chance of winning a suit for emotional distress in the kind of situations you point to as examples, though, against a school district or anyone else.
The continued viability of premium cable channels despite the availability of free, advertising-supported broadcasts, suggests that there are more than a handful of people willing to pay money to watch video without advertising even where free, advertising supported alternatives exist.
So you use a closed circuit that simulates city conditions in a repeatedable manner, and you have a number of different drivers and average the results. You use telemetry to make sure that the manner of driving is within certain prescribed limits for each run through the course, and discard runs outside of the range and have them re-run.
If your car isn't moving through the air, you aren't testing its mileage, since effects from air (both drag and lift) are fairly significant effects on the performance of cars, and something that real-world vehicles differ in features designed to address.
(Relatively speaking, sports cars are probably getting gypped on highway mileage from this, since lift and drag are both factors that are more significant with higher speed, and sports cars are more designed with attention to them.)
Prius owners I known have always reported that their actual measured mileage was around 50mpg or a little over. That's pretty close to what you'd expect overall from the old ratings, and much higher than even the best (city) rating in the new ratings. Certainly, I'm unconvinced that the new ratings are more accurate.
But, its interesting to note that even with the changes, the the total hybrid models with comparable non-hybrids (Civic, Camry, Escape) on the list still get, in every case, better than 1.5 times the mileage of the equivalent non-hybrid in the city, and only a shade less than that overall.
The clear prohibition has been pointed to many times on this thread in response to you. You have, as yet, presented no legal counterargument, just repeated the claim that there are two sides, and that both "seem to have legal merit". But, you know, no support for that claim.
Yes, clearly, you choose the side that wants to protect terrorists (in the original sense stemming from the French Revolution and associated Terror) from America (the country and people), rather than vice-versa.
Why you would want to choose that is less clear.
Yep, they were legal before Congress created a warrant requirement for them in the foreign itnelligence context, one that already existed for wiretaps. How is that relevant, here?
Perhaps some day you'll graduate to citing relevant precedent, too.
Usually, perhaps.
Not really, there are plenty of areas where the law is applied by the other branches and for various reasons there are no remedies available (and even more where there are theoretical remedies but not practical ones) through the judiciary to the final decisions of the other branches.
Um, no.
The reports are that they do this and then go after them without warrants, "traditional" or otherwise. In fact, that the very recording is through an automated system based on the connectedness. Were they securing warrants, this would be clearly within FISA. (Except that even the FISC would probably deny the warrants, since even FISA warrants still require probable cause, which such analysis would be unlikely to produce, even by a stretched definition.)
That's not true, either, it (whether it should be or not) fairly clearly is not, which is why, if the reports were generally as you describe, the system would be legally uncontroversial, though perhaps still politically controversial.
Yeah, see, the whole principle of limited government is that the citizenry, through laws dependent on the basic law, the Constitution, determine what government can and cannot do. Government may keep secrets within that legal framework, but parts of the government don't get to decide they have more power than they have been legally assigned just because they think things might work better that way. Government officers have the powers they are granted through law, not the powers they think would be convenient.
Not that, in fact, the Bush Administration has asked for forgiveness or permission.
Strange that so many reports of terrorism investigations both here and abroad even before this system became public reported terrorists doing that. I suspect that the NY Times revelation was not the first time terrorists considered the possibility that they might be being surveilled.
The article you point to refers to authorizations of warrantless wiretapping under the conditions expressly authorized by FISA. Warrantless wiretaps for foreign intelligence surveillance purposes are expressly legal under FISA under very specific conditions. The details that the Bush Administration has admitted to of its warrantless wiretaps (unlike those of the authorizations specifically conforming to FISA by previous Presidents, which merely direct the executive branch exercise powers express in the Act) extend beyond the perimeters of the act to cover subjects and circumstances specifically excluded from warrantless wiretapping under the Act.
So, while it does apply to Chris Burke's overly broad claim that warrantless wiretapping is always illegal, it doesn't however, serve as a defense of the practice of the present administration, even by the schoolyard "everyone else does it" standard.
Nor did I say you did. I said that the feature was deliberate ambiguity because, while the actual framework was agreed, the details were deliberately left to be resolved in the light of experience by future actors.
That's how the US system handles both ambiguity of detail of the type I actually referred to, and ambiguity of inputs. So what, exactly, are you complaining about?
That's not true; domestic wiretaps for law enforcement purposes are issued by regular courts. The Foreign Intelligence Surveillance Court exists to issue warrants for foreign intelligence surveillance by electronic means, where such is not within the set of circumstances where, under FISA, no warrant is required.
That is not precisely true in general (there are circumstances under which searches are reasonable under Fourth Amendment law despite not having a warrant), but under FISA, it is true of electronic surveillance under color of law without specific statutory authorization, including "foreign intelligence" surveillance without a warrant outside of the specific exceptions to the warrant requirement in FISA itself.
Since no one other than the executive branch has the Constitutional authority to bring criminal charges, how on Earth would there be case law on the issue when the person who has directed the alleged crime is now, and has been since before the time the alleged crime was committed, President of the United States?
The statute, however, is clear and has been cited and quoted already in this thread (50 USC 1809). If you have any basis in the text of the Constitution, in the statute, or in the case law to argue that it is inapplicable, you can, of course, make your argument. But for some reason, I don't see that happening here. I wonder why?
This is often not a bug, but a deliberate feature. ISTR that James Madison was rather explicit that ambiguity was left in certain areas of the Constitution so that details would be resolved through interpretation in light of experience.
If human societies were digital systems with finite, well-defined inputs and outputs, than systems like this ideally suited for regulating such systems would probably work well.
Much of the problem in law is that the ideas being expressed are inherently fuzzy, not just poorly expressed.
Exactly what I said, no hidden messages there.
Ooh, scary.
Well, no, if you are referring to a side of either of the two substantive issues you've suggested exist, I'm not, at least not out in this little subthread that you posted the "there's 2 sides to every debate" inanity to. What I said here was that your characterization of the Amendment IV argument as separate from Congressional power to constrain the Executive argument is clearly erroneous, regardless of the merits on either side of either of those two substantive arguments themselves.
Now, certainly, being someone whose read and carefully considered the Constitution and the cases usually cited (and most of the cases those cite as precedent, and quiet a few others that touch on the issues) I do have an opinion as to what position with regard to those substantive issues that text of the Constitution and the relevant case law falls down on, but that's not what I've been discussing in this little exchange.
Well, you know, if you think the discussion is that pointless, no one is forcing you to participate.
No, you just did short lines with the same left margin, not the style shown in the samples.
No, wiretapping under color of law outside of specific statutory authorization or court order is criminal. And by "criminal" I don't mean "something I simply don't like", I mean, "an offense punishable by fines and imprisonment under federal law". To quote from FISA (50 USC 1809):
That's not really true. Just because something is a violation of the law doesn't mean there is a remedy available through the legal system (there may be remedies like amending the Constitution, changing the law, impeachment, defunding operations, or voting people out of office, but since those are political remedies that don't rely on the problem involving a violation of existing law, they aren't relevant to the "if it were truly a violation of the law..." argument, since they are not a function of whether or not there is a violation of the law, and exist for all things one might dislike independently of legality.)
Sure it does, when Bush is channelling Darth Vader: "I have clarified the policy. Pray I do not clarify it any further."
Quod rex vult, lex fit seems to be the operating principle, here.
That there are two sides to a dispute does not imply that the two are equally well supported.
The National Security Agencey/Central Security Service (popularly known as "NSA") is a component of the Department of Defense directed by a three-star flag officer.
Well, a bill, though he is threatening another one that has passed the House but not yet the Senate.
No, the two arguments are connected.
Yes, and one factor that some of that case law points to in whether or not a search is "reasonable" under the Fourth Amendment is whether or not it is consistent with, or in conflict with, statutory controls, the latter being a factor which weighs against reasonableness.
The Legislative branch does have the authority to decide how to allocate funds and what purposes they may be used for, and this is the annual funding bill for the intelligence community. The Executive branch has no authority spending money to do anything not authorized by the legislation appropriating the money used.
That fails to exhaust the possibilities. While in many areas of domestic affairs, where the government has Constitutional power to do things, the Executive has power only so far as authorized by Congress, in foreign and military affairs, there are many areas where the courts grant the Executive a fair degree of latitude to act unilaterally within the Constitutional powers of the government where Congress has not acted to constrain the Executive.
OTOH, it does have the authority to take away executive powers that it has granted by its inaction as well as those that it grants by its action.
Its the annual funding bill for the intelligence community. Presumably, the President would like to have some authority to spend funds for intelligence purposes.