Samir’s Selection 07/10/2013 (p.m.)

  • Pranesh Prakash: … In a landmark 1996 judgment, the Indian Supreme Court  held that telephone tapping is a serious invasion of an individual’s privacy and that the citizens’ right to privacy has to be protected from abuse by the authorities. Given this, undoubtedly governments must have explicit permission from their legislatures to engage in any kind of broadening of electronic surveillance powers. Yet, without introducing any new laws, the government has surreptitiously granted itself powers – powers that Parliament hasn’t authorized it to exercise – by sneaking such powers into provisions in contracts and in subordinate legislation.

    tags: India-security India-politics surveillance law accountability

  • Noah Feldman: In our system, courts that only listen to the government shouldn’t really be considered courts at all…

    Courts in some states and other countries issue advance advisory constitutional opinions all the time, and there’s nothing inherently undemocratic about the practice. The federal courts don’t do this because the justices have traditionally believed that their job depends on judging between competing arguments about what the law demands. Requiring concrete cases rather than hypotheticals is part of this; so, too, is the notion that only parties with a genuine stake in the outcome can press their claims with full zealousness…

    Secret laws are undemocratic, and public laws secretly interpreted aren’t much better, because the public can’t know what the laws mean in practice. But it may turn out that the worst part of the secret surveillance courts is what they do to our tradition of the court fight as a battle among equals. The same justices who care so much about standing in the cases before them ought to take an interest in what is happening in the national security courts they oversee. Sadly, when the court was faced with a Foreign Intelligence Surveillance Act case earlier this year, it refused to decide the issue. The reason? The parties before the court lacked standing.

    tags: law standing USconstitution surveillance NSA

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