The Snowden Effect, Continued
WHISTLEBLOWING - SURVEILLANCE, 27 Jan 2014
One of the more dishonorable ways to discuss the what our all-too-human, but curiously error-prone, heroes of the NSA have been up to since we all decided to hide under the bed in 2001 is to make it all about Edward Snowden, International Man Of Luggage, and what he did, and about Glenn Greenwald, and what he did. But the fact is that the available evidence is that the NSA was at the very least barbering its own regulations, and at the very most breaking the law. And it’s not just Snowden saying this. The New York Times is not edited by fanbois, and there is no better reporter on this stuff anywhere in the world than Charlie Savage, who is not a wild-eyed lefty, or an “anarchist” devoted to bringing down the surveillance apparatus because he hates “the modern liberal state” or whatever it is that Sean Wilentz is so worried about as he slides steadily into his new career as the Scoop Jackson of the cyber-age. In fact, I give Charlie credit for being as puckish as Mother Times likely would allow.
The report is likely to inject a significant new voice into the debate over surveillance, underscoring that the issue was not settled by a high-profile speech President Obama gave last week.
You think?
The Obama administration has portrayed the bulk collection program as useful and lawful while at the same time acknowledging concerns about privacy and potential abuse. But in its report, the board lays out what may be the most detailed critique of the government’s once-secret legal theory behind the program: that a law known as Section 215 of the Patriot Act, which allows the F.B.I. to obtain business records deemed “relevant” to an investigation, can be legitimately interpreted as authorizing the N.S.A. to collect all calling records in the country. The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”
If an activity “lacks a viable legal foundation” under the law that’s supposed to make that thing legal, this appears to the untrained observer as though said activity is “illegal.”
These aren’t wacky liberals on the Intertoobz, or members of what my buddy Gene Lyons calls “the anti-gravity Left.” These are serious lawyers whose job it is to look at the surveillance apparatus with a critical eye and say, yes or no, whether the surveillance apparatus is conforming with American law and American principles. And it has said, with one clear voice, that the NSA has not been doing that.
The report also sheds light on the history of the once-secret bulk collection program. It contains the first official acknowledgment that the Foreign Intelligence Surveillance Court produced no judicial opinion detailing its legal rationale for the program until last August, even though it had been issuing orders to phone companies for the records and to the N.S.A. for how it could handle them since May 2006.
That’s the court that defenders of the administration assure us will safeguard our rights against the increasing power of the surveillance state. Oversight! And here to present the opposing case on behalf of our unknown heroes are two people who cut their teeth on this issue within that model of probity and constitutional nuance — the C-Plus Augustus Justice Department. I am reassured.
But the other two members – Rachel L. Brand and Elisebeth Collins Cook, both of whom were Justice Department lawyers in the George W. Bush administration – rejected the finding that the program was illegal. They wrote in separate dissents that the board should have focused exclusively on policy and left legal analysis to the courts. Last month, two Federal District Court judges reached opposite legal conclusions in separate lawsuits challenging the program.
By this time, all defenses based on the principle of “They’d never do that,” are moot. The NSA pretty clearly will do whatever it wants to do, whenever it wants to do it, and, if it gets caught later on, it will stand the gaff and move along to do whatever it wants to do next. This is not a rogue thing. This is what the NSA believes its mandate to be. This is what it has decided that its job is. If the country agrees with that, or decides to get distracted by what Edward Snowden says, or what is said in return about him, then the country has decided that it agrees. Ignorance is no longer an acceptable alibi. We know what’s going on.
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Charles P. Pierce has been a working journalist since 1976. He is the author of four books, most recently Idiot America. He lives near Boston with his wife but no longer his three children.
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