Of course NSA mass surveillance is illegal

Theo Caldwell | Investor and Broadcaster

The recent decision of Federal Judge Richard Leon, that the National Security Agency’s bulk collection of Americans’ communication records does violence to the Constitution, demonstrates a rare convergence of elite jurisprudence and common sense.

While this is by no means the last word on the matter – Judge Leon stayed his own ruling, noting that the debate will likely end up before the Supreme Court – it is encouraging to see prominent legal minds alight upon the self-evident conclusion that mass surveillance of Americans is very wrong.

The propriety of the NSA’s conduct is not a difficult question. What is the meaning of life? Does ensoulment occur at inception? What is the appeal of white chocolate? These are difficult questions.

Should the government of a supposedly free country help itself to the private communications of its citizens? That’s a gimme.

Ah, but they say, we are at war! Always, it seems, we are at war – with drugs, with poverty, with terror, with common sense. (Herewith, I propose America’s next domestic battleground: a War on Bureaucracy). The NSA’s data collection, like the militarization of police or the TSA’s busy hands, supposedly bolsters the noble campaign to keep us safe.

This is rhubarb of the first order. The average American, going about his daily business, has more to fear from power-drunk cops or “Knockout Game” enthusiasts than from al-Qaeda. And increasingly, he has more to fear from his own federal government – the most powerful and omniscient force on the planet – than from all of these combined.

As a moral matter, there is little defense for the NSA’s ubiquitous snooping. At times, the edification of law by morality is clear. It is often noted that murder is not wrong because it is illegal; it is illegal because it is wrong. Nevertheless, there is frequently a chasm between what is legal and what is right.

In such cases as these, there’s always some Harvard Law legerdemain, mystifying to the rest of us rubes, whereby the plain language of the Constitution somehow doesn’t mean what it says and, if only we’d read the Nosey vs. Parker decision, we’d appreciate the applicable precedent.

Nuts to that. America aspires to have a citizen government, not a lawyerly oligarchy. Yet time and again, from the wells of Congress or across the airwaves, self-styled experts defend the indefensible to us, in slow and measured tones, as though they were explaining civics to a small child, or a Golden Retriever.

Any politician, left or right, Republican or Democrat, who offers rationale akin to, “If you have nothing to hide, you have nothing to fear” should be hooted out of public life. Notwithstanding the emotional satisfaction inherent in defenestrating an adult who pronounces something so dunderheaded, such a politician plainly misunderstands who reports to whom in a representative government. To wit, the onus is not on free citizens to ensure their records are spotless for inspection; it is on the authorities to show why they need to see them, and under what suspicion.

It is reported that German Chancellor Angela Merkel, in a heated exchange with President Obama over the NSA tapping her mobile phone, compared the agency’s tactics to those of the Stasi during the Cold War. Indeed. East Germany, the Soviet Union, Saddam Hussein’s Iraq – these were but a few of the modern states where citizens took it for granted that the government monitored their communications.

America purports to be different, and better. But by what criteria can the country make that claim, as it pertains to the privacy of its people? The high-minded words calligraphed on 18th Century parchment, or the actions of its government today?

Some choose to believe the NSA when they assert that only so-called metadata are being collected (as in, which numbers call each other, from what locations, and so forth), rather than the actual content of phone conversations and emails. What a dark, dreary place the world would be without such sanguine, trusting souls. Careful not to crush their innocence, in light of the mendacity we have seen to date, one wonders whether the simpler explanation is that the NSA, having been exposed, is simply admitting to the least objectionable conduct they can.

If the NSA is only applying serious scrutiny to a couple hundred people, as its Director claims, very well – let them get warrants for each of those folks. Even by the standards of government inefficiency, the idea of gathering the data of over 300 million citizens – or tracking 5 billion phone records a day worldwide – to isolate a crowd slightly larger than a Wheel of Fortune studio audience seems a bit much.

In his decision, Judge Leon noted the NSA cannot point to a single instance in which its Peeping Tom routine has thwarted a terrorist attack. Just so. The NSA’s rejoinder would be that their successes, like their methods, are highly classified and so cannot be marshalled in their defense.

This has been the song of shady bureaucrats for ages – information is exquisitely sensitive, intensely personal, completely private – but if you knew what we know, boy howdy, you’d be right on board with whatever it is we’re doing, though we can’t tell you that, either.

Yale Professor James C. Scott has demonstrated that it is the nature of governments to seek to render citizens “legible.” Inherently, the state is possessed by an urge to monitor, codify, analyze and regulate the behavior of its population.

But when that appetite becomes too rapacious, it is the duty of free-born people to resist.

Theo Caldwell can be reached at theo@theocaldwell.com

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