Of course NSA mass surveillance is illegal

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.