2) The constitution does not directly state that foreigners have rights. That does not mean the President cannot state that he views foreigners as having rights X, Y, and Z, and that he is directing the forces and agencies under his command to respect them.
5) It most especially means "stop pushing the use of compromised encryption standards". If there is a weakness for the good guys to exploit, the bad guys will find it as well - it is better that we strive to be secure. Attempting to break encryption standards the world has come to through legitimate processes is an entirely different thing, and totally compatible with that striving to be secure. Backdoors into equipment sold internationally are less of an issue - and the more targeted, the less of an issue - I'm not sure what the right call is there, once we're generally respecting point 2.
7) The president can state that he doesn't believe it is appropriate (bully pulpit...), and can instruct the Justice Department not to rely on it. He could also ask for legislation that closes the loophole explicitly - we already do that for HIPAA.
I'm not saying any of these are politically expedient (though I would prefer the political environment to be such that it is) or likely, but "the President can't do this" is wrong, and "it is not politically expedient" is reason not excuse.
I said: "either politically impossible or not within the President's power." Recognizing foreigners as having "rights" that constrain the security-related operations of the NSA would be a political non-starter.
Re: "stop pushing the use of compromised encryption standards" is a lot narrower than "stop undermining internet security." Politically, the former might be possible, but the latter certainly wouldn't be, at least to the extent they involve breaking encryption standards and the like.
Finally, while the President could theoretically instruct the Justice department not to rely on the doctrine, he can't "reject it" as the law of the land. He also can't, practically, tell the DOJ not to rely on it. U.S. v. Miller is the underpinning of a huge portion of white-collar and antitrust enforcement activity.
'I said: "either politically impossible or not within the President's power."'
Yes, and I'm not sure I disagree with that statement. My responses weren't directed to that statement, but to the more specific enumerated critiques. In any event, "X is seen as politically impossible" shouldn't become "never ask for X", or X will never be seen as politically possible because no one is asking for it.
'Recognizing foreigners as having "rights" that constrain the security-related operations of the NSA would be a political non-starter.'
I think that's something we should fix (and I think doing so would be in our long-term interest on several fronts, including security). We start by stating that it's something we want.
Re internet security: Breaking encryption standards, and then recommending that it's time to move to new standards when the breaks become sufficiently significant, is not undermining internet security - it is furthering internet security.
'Finally, while the President could theoretically instruct the Justice department not to rely on the doctrine, he can't "reject it" as the law of the land.'
"Rejecting" a law doesn't have a precise legal meaning that I'm aware of. The call is for him to 1) say that it's bad, and 2) to take steps to curtail it.
"He also can't, practically, tell the DOJ not to rely on it. U.S. v. Miller is the underpinning of a huge portion of white-collar and antitrust enforcement activity."
So call for legislation that restricts it without overly restricting it (granting that the costs of going all the way would exceed the benefit), or find some other means of enabling that enforcement.
Comments
2) The constitution does not directly state that foreigners have rights. That does not mean the President cannot state that he views foreigners as having rights X, Y, and Z, and that he is directing the forces and agencies under his command to respect them.
5) It most especially means "stop pushing the use of compromised encryption standards". If there is a weakness for the good guys to exploit, the bad guys will find it as well - it is better that we strive to be secure. Attempting to break encryption standards the world has come to through legitimate processes is an entirely different thing, and totally compatible with that striving to be secure. Backdoors into equipment sold internationally are less of an issue - and the more targeted, the less of an issue - I'm not sure what the right call is there, once we're generally respecting point 2.
7) The president can state that he doesn't believe it is appropriate (bully pulpit...), and can instruct the Justice Department not to rely on it. He could also ask for legislation that closes the loophole explicitly - we already do that for HIPAA.
I'm not saying any of these are politically expedient (though I would prefer the political environment to be such that it is) or likely, but "the President can't do this" is wrong, and "it is not politically expedient" is reason not excuse.
I said: "either politically impossible or not within the President's power." Recognizing foreigners as having "rights" that constrain the security-related operations of the NSA would be a political non-starter.
Re: "stop pushing the use of compromised encryption standards" is a lot narrower than "stop undermining internet security." Politically, the former might be possible, but the latter certainly wouldn't be, at least to the extent they involve breaking encryption standards and the like.
Finally, while the President could theoretically instruct the Justice department not to rely on the doctrine, he can't "reject it" as the law of the land. He also can't, practically, tell the DOJ not to rely on it. U.S. v. Miller is the underpinning of a huge portion of white-collar and antitrust enforcement activity.
'I said: "either politically impossible or not within the President's power."'
Yes, and I'm not sure I disagree with that statement. My responses weren't directed to that statement, but to the more specific enumerated critiques. In any event, "X is seen as politically impossible" shouldn't become "never ask for X", or X will never be seen as politically possible because no one is asking for it.
'Recognizing foreigners as having "rights" that constrain the security-related operations of the NSA would be a political non-starter.'
I think that's something we should fix (and I think doing so would be in our long-term interest on several fronts, including security). We start by stating that it's something we want.
Re internet security: Breaking encryption standards, and then recommending that it's time to move to new standards when the breaks become sufficiently significant, is not undermining internet security - it is furthering internet security.
'Finally, while the President could theoretically instruct the Justice department not to rely on the doctrine, he can't "reject it" as the law of the land.'
"Rejecting" a law doesn't have a precise legal meaning that I'm aware of. The call is for him to 1) say that it's bad, and 2) to take steps to curtail it.
"He also can't, practically, tell the DOJ not to rely on it. U.S. v. Miller is the underpinning of a huge portion of white-collar and antitrust enforcement activity."
So call for legislation that restricts it without overly restricting it (granting that the costs of going all the way would exceed the benefit), or find some other means of enabling that enforcement.