It Still Doesn't Matter if NSA Spying is Legal, It's Wrong Anyway

Cindy Cohn at the Electronic
Frontier Foundation addresses the New York Times’ eternal
agonizing over its internal decision to delay, by 13 months, a
major 2005 story about warrantless wiretapping by the Bush
administration. That decision still raises doubts about the
Times’ relationship with government officials, and led to
Edward Snowden bypassing the gray lady when looking for a willing
outlet for this year’s revelations about NSA spying (that’s NSA
honcho, Gen. Keith Alexander, pictured). Cohn takes issue with
Times’ staffers conclusions that all of this intrusive
surveillance is now legal, arguing that the Obama administration
relies on tortured interpretation of the law to intercept phone and
Internet communications. But Cohn is letting herself get caught up
in an side-show argument that ought to be left to the increasingly
irrelevant scribblers at fading media institutions. In fact, it
doesn’t matter if the government’s vast surveillance schemes are
legal. What matters is that the spying is despicable and should be
fought, frustrated, and sabotaged by anybody with the means to do
so.

In an
article on the controversies and debates swirling around the 2005
article, Times’ public editor Margaret Sullivan quotes
Eric Lichtblau, one of the authors of the article, on the
fallout.

Given the law of unintended consequences, and a fair helping of
irony, the publication of the warrantless eavesdropping story
resonates now in quite another way: The furor it caused prompted
the Bush administration to push hard for changes in the laws
governing surveillance.

“Our story set in motion the process of making all this stuff
legal,” Mr. Lichtblau said. “Now it’s all encoded in law. Bush got
everything he wanted on his way out of office.”

There may be public outrage over the latest wave of surveillance
revelations, but the government has a helpful defense: Hey, it’s
legal.

Hold on there,
writes Cohn. Not so fast.

Not so.  The government’s claims of “legality” are wrong,
have been strongly criticized by national security
law professors, and are currently being challenged in court by
EFF, ACLU, and EPIC, among others. The Times disserves its audience
by repeating them as if they were true.

In fact, the ACLU has a hearing in New York this Friday,
November 22, in its key challenge to one of those “legal” claims:
that the NSA’s indiscriminately collecting telephone records is
“legal” under a convoluted interpretation of the section 215 of the
2001 Patriot Act that mentions neither telephone records nor the
NSA. To try to make it fit, the government attempts to redefine the
limits on production of “relevant” things to allow the collection
of massive amounts of “irrelevant” information. In other words, by
a plain reading of the statute, what the NSA is currently doing in
collecting massive amounts of telephone records on an ongoing basis
is not legal.

Cohn is likely correct, I think. The feds have stretched Section
215 well beyond the breaking point, relying on secret
interpretations of that law, as well as on executive orders that
they won’t even release to the public. Chances are, given an honest
judge, federal surveillance will eventually be found to have gone
beyond the limits of the law.

But should we be satisfied if the judicial system proves
accommodating to the silly putty theory of legal interpretations?
Or what if Senate and House leaders slap themselves on the
forehead, say “our bad,” and pass legislation that really
does authorize the snooping? Does that make it all
right?

As I’ve
written before, the answer is: No fucking way. The surveillance
is intrusive, violates privacy, and empowers untrustworthy state
officials with information that is too easily abused. That is, it
should be illegal because it’s unacceptable; it’s not unacceptable
because it’s (presumably) illegal. We shouldn’t tolerate the
surveillance state whether or not Congress dots the president’s
“i”s and crosses his “t”s for him.

I hope the ACLU, EFF, and EPIC are successful in their legal
challenges to government surveillance for tactical reasons—it’s a
path to victory over the snoops. But that doesn’t mean we should
stop fighting the surveillance state even if politicians extend the
cloak of legal rectitude to cover its transgressions.

A legal surveillance state still needs to be drowned in
the creek.