Speaking as a foreigner, I can assure you that "oh, this is only for foreigners" is not going over well in europe. I'm pretty sure the EU is going to come down hard on the US over this. Or rather, they will simply mandate that data for EU citizens is not allowed to leave the EU without the express prior consent of those citizens. It's the perfect excuse to give favorable treatment to the EU IT industry without the US having a legitimate complaint in front of the WTO.
You don't like being spied on? I don't blame you. But that doesn't make it unconstitutional. One time, we invaded a whole country, dropped bombs all over populated urban centers, took over for about 5 minutes, dissolved the army, and then stood back and let the whole place turn to hell. That sucked a lot. Also: not unconstitutional.
That's the thing people don't seem to get. Not everything bad or stupid is unconstitutional. People just want it to be unconstitutional because then they would be able to go to a court and have it stopped.
There are some things, if you want them stopped, you have to go to Congress.
No, this is actually a pretty anomalous situation on the face of it. Everyone knows that you can be sitting outside in the evening sun using your laptop in Western Pakistan, and Barack Obama can send a Predator drone over the horizon to kill you without any US constitutional issue if you're not a US citizen. (Aside from maybe the War Powers Clause.) What he can't do is confiscate your 500 shares in AT&T or other US property without any legal proceeding. So it's actually moderately suprising that non-resident aliens' US cloud data apparently doesn't enjoy the same US constitutional protections that their other US interests do.
Yes, I have heard of problems with asset-forfeiture laws in the States. But apparently the amount of legal protection and redress you have against government asset forfeiture is still luxurious compared to what you have as a non-resident alien facing spying on your Google account: in the latter case it's basically none. (There's also the fact that US citizens seem to have (IANAL) as little protection as you, but that's cold enough comfort.)
Given that Pres. Obama would be operating under his military authority as Commander-in-Chief if he did order such a drone strike, then it might very easily still be considered a war crime.
The U.S. Constitution doesn't explicitly talk to homicide but U.S. legal code does, and there's no requirement that your victim be a U.S. citizen. So even with the drone example it's not clear-cut that Pres. Obama has the legal authority to kill any foreigner he wishes.
The Constitution established the Congress and its legal precedent, including the superiority clause restricting International matters to Federal law. If you obey a law under U.S. Code or the Statutes-at-Large, it's because of the power granted to Congress, the President, and the Supreme Court by the Constitution.
Or in other words, things that are illegal are illegal because they're also unconstitutional (assuming it's withstood the scrutiny of the Supreme Court, if it makes it to that level).
Congress and the President derive their authority from the grants of power in the Constitution. If the courts cannot find an argument from the Constitution giving them authority, or if the courts accept an argument from the Constitution forbidding a particular action, then that is unconstitutional.
Put an equivalent way, Congress and the President only have authority if there is both an argument from the Constitution saying that they have authority, and if no argument from the Constitution is accepted by the courts saying that the action they want to engage in is prohibited by the Constitution. (There is a grey area where the President does things forbidden by Congress. That can get interesting, particularly since the Supreme Court tends to try to stay out of it. If you want examples, examine conflicts between Congress and multiple presidents over the War Powers Act.)
"Unconstitutional" usually means "directly prohibited by the Constitution" as opposed to "indirectly prohibited by the constitution." We already have a word for "directly or indirectly prohibited by the Constitution": illegal. The distinction is relevant when we need to know where to look to answer a question, what to modify to effect a certain outcome, or whether a law is permissible.
(In theory you could argue that it was prohibited under the 10th. But the arguments made by the court would apply regardless of the presence of the 10th.)
That's orthogonal. My point is that calling something that is prohibited by law but could, without changing the constitution, not be prohibited by law "unconstitutional" simply because that's where the authority fundamentally lies is not meaningful and is not what most people mean when they say "unconstitutional."
Let's grab a random dictionary. http://dictionary.reference.com/browse/unconstitutional defines it as, not constitutional; unauthorized by or inconsistent with the constitution, as of a country. Note the "unauthorized by" bit, which is what we are discussing.
Also go to the wikipedia links I gave you earlier for the two cases of note, and follow the various references in those links. You'll find "unconstitutional" being repeatedly used in the manner that I describe - and not as you claim it is used.
In short if the courts rule that something is not allowed under the Constitution, people call it unconstitutional. And this applies whether their reasoning is that nothing authorizes the bill, or that the bill violates a specific protection in the Constitution.
You keep talking about something I am not talking about.
"And this applies whether their reasoning is that nothing authorizes the bill, or that the bill violates a specific protection in the Constitution."
But not that it simply happens to be prohibited by a law, where the constitution authorizes the law but doesn't require it. Not every violation of federal law is "unconstitutional", at least as commonly understood.
D'oh, I scrolled back and you're right that I misread what mpayne had said.
Indeed, something that is against a law that is constitutional is illegal, but not unconstitutional. It is only unconstitutional if you'd have to change the Constitution or (more often) the interpretation of the Constitution in order to make it be permitted.
>What he can't do is confiscate your 500 shares in AT&T or other US property without any legal proceeding.
Are you sure that would be unconstitutional rather than "only" a violation of various treaties and an act likely to cause powerful entities to respond politically?
The EU isn't going come down that hard on it because a) they do the exact same thing and b) they quite like outsourcing the costs to the US but getting a lot of the benefits. I'm guessing that at most you'll see a aspirational clause on data privacy buried in the depths of the forthcoming EU-US FTA. http://www.rte.ie/news/business/2013/0614/456567-eu-us-fta/
This seems highly unlikely given that just about every EU country engages in foreign surveillance. What do you think is the primary purpose of agencies such as the GHCQ or BND?
And since there are intelligence-sharing agreements between the countries, countries are spying on their own citizens with deniability by doing it through third parties. If they even care enough to maintain the ruse.
what you say is false, EO12333 expressly forbids this with the following:
"2.12 Indirect Participation.
No element of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order. "
I'd have to read it closer than I have to figure out what it means, but section 2.4 seems relevant:
Agencies within the Intelligence Community shall use the least
intrusive collection techniques feasible within the United States
or directed against United States persons abroad. Agencies are
not authorized to use such techniques as electronic surveillance,
unconsented physical search, mail surveillance, physical surveillance,
or monitoring devices unless they are in accordance with procedures
established by the head of the agency concerned and approved by
the Attorney General. Such procedures shall protect constitutional
and other legal rights and limit use of such information to lawful
governmental purposes. These procedures shall not authorize:
(a) The CIA to engage in electronic surveillance within the
United States except for the purpose of training, testing,
or conducting countermeasures to hostile electronic surveillance;
(b) Unconsented physical searches in the United States by agencies
other than the FBI, except for:
(1) Searches by counterintelligence elements of
the military services directed against military
personnel within the United States or abroad for
intelligence purposes, when authorized by a military
commander empowered to approve physical searches for law
enforcement purposes, based upon a finding of probable
cause to believe that such persons are acting as agents
of foreign powers; and
(2) Searches by CIA of personal property of non-United
States persons lawfully in its possession.
(c) Physical surveillance of a United States person in the United
States by agencies other than the FBI, except for:
(1) Physical surveillance of present or former employees,
present or former intelligence agency contractors or
their present of former employees, or applicants for
any such employment or contracting; and
(2) Physical surveillance of a military person employed
by a nonintelligence element of a military service.
(d) Physical surveillance of a United States person abroad
to collect foreign intelligence, except to obtain significant
information that cannot reasonably be acquired by other means
Nothing in PRISM involves physical surveillance, therefore b, c, and d are trivially satisfied.
Surveillance by foreign intelligence agencies is in no way surveillance by the CIA, so a is satisfied.
There is no noticeable user impact at all, which satisfies "least intrusive".
PRISM is, in accord with the law, established by the head of the agency concerned and approved by the Attorney General.
There are procedures in place to protect constitutional and other rights.
In the legal reality supported by the last several administrations, section 2.4 is completely satisfied by turning over US data wholesale to foreign countries, who are then free to use it to spy on US citizens.
