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Jul 02 2013

The NSA and the government broke the law

It should be clear to any observer that the US government sees the law as merely a convenience, to be invoked when it serves its interest and ignored if it interferes at all with its ability to do whatever it wants. But while should be obvious that the US government has absolutely no respect for the law, president Obama and his loyalists still have to mouth pieties about how they value the rule of law. In order to maintain this fig leaf, they resort to contorted reasoning that is mainly designed to provide Congress, the courts, and the public with the defense that while one may not like what the government is doing, it is at least technically within the law.

But an article in the Washington Post today confirms that the people who buy the government’s arguments that it is acting legally are being duped because the government has a long history of using lies and wordplay to make its lies appear true. President Obama particularly seems to be a master at that kind of deception while his predecessor George W. Bush was clumsy.

But details that have emerged from the exposure of hundreds of pages of previously classified NSA documents indicate that public assertions about these programs by senior U.S. officials have also often been misleading, erroneous or simply false.

The same day Litt spoke, the NSA quietly removed from its Web site a fact sheet about its collection activities because it contained inaccuracies discovered by lawmakers.

Beyond inadvertent missteps, however, an examination of public statements over a period of years suggests that officials have often relied on legalistic parsing and carefully hedged characterizations in discussing the NSA’s collection of communications.

Obama’s assurances have hinged, for example, on a term — targeting — that has a specific meaning for U.S. spy agencies that would elude most ordinary citizens.

Now Jennifer Stisa Granick (director of civil liberties at the Stanford Center for Internet and Society) and Christopher Jon Sprigman (professor at the University of Virginia School of Law) have unequivocally rejected the idea that what the NSA did was legal.

The twin revelations that telecom carriers have been secretly giving the National Security Agency information about Americans’ phone calls, and that the N.S.A. has been capturing e-mail and other private communications from Internet companies as part of a secret program called Prism, have not enraged most Americans. Lulled, perhaps, by the Obama administration’s claims that these “modest encroachments on privacy” were approved by Congress and by federal judges, public opinion quickly migrated from shock to “meh.”

They say that this has enabled Obama supporters of the national security state to adopt their favorite pose, to sigh regretfully that though they find this kind of surveillance distasteful (this serves to shore up their civil liberties credentials) they have to reluctantly admit that what was done was legal (which shores up their bona fides as solid establishment types). Granick and Sprigman are having none of that.

This view is wrong — and not only, or even mainly, because of the privacy issues raised by the American Civil Liberties Union and other critics. The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

They then proceed to lay out the reasons for their judgment and their op-ed should be read because no summary could do it justice . They conclude:

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

That sounds about right.

5 comments

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  1. 1
    machintelligence

    But suggesting (or worse yet, proving) these programs are criminal is treason. Hello, catch 22.

  2. 2
    augustpamplona

    <sarcasm>What? I thought the programs were legal under a super secret legal interpretation?</sarcasm>

  3. 3
    trucreep

    I keep asking myself just how much more is it going to take for everyone to demand action

  4. 4
    Marcus Ranum

    This demonstrates one of the reasons “manufactroversies” like the Benghazi bullshit are damaging – the electorate becomes inured to real scandal. Nixon’s crimes were much less severe than Obama’s; perhaps it’s simply that Obama’s smart enough to not record himself sounding like an utter asshole…

  5. 5
    Marcus Ranum

    I have a secret legal theory that the US government has broken the social contract, and I no longer owe it any loyalty (including taxes). Somehow, I suspect that my theory – though as well-founded as theirs – won’t hold as much weight.

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