Legal, but not constitutional: how the government is weasel wording the public about Edward Snowden and the NSA

Homeland Security PrecrimeThe Edward Snowden/NSA/PRISM uproar continues, and in the argument over whether or not he’s a Real American Patriot or your basic criminal vigilante the whole fucking point is getting lost. In fact, that argument is precisely the one that the Obama administration and the GOP’s security-state architects want us waging because it distracts us from the actual issue we need to be discussing.

You may have noticed, in reading the various statements from government officials, the recurrence of a theme: the program that Snowden exposed is legal. Keep track of how many times you hear that word. It’s. All. LEGAL.

Yes it is. And the effectiveness of the government’s rhetoric right now is unfortunately due, in part, to the language employed by the left over the past decade, which has lambasted the Bush administration’s illegal domestic spying program. Illegal. Legal. Therein lies the problem. (I have to admit that I have been culpable in this – somehow I didn’t quite grok how that framing was inadvertently legitimizing the Patriot Act and FISA.)

The problem isn’t legality, it’s constitutionality, and there’s a huge difference. The programs that Snowden dropped the dime on are legal because they’re defined by laws passed by Congress. Period. If Congress passes a law, it is by definition legal until such time as it is either overturned by either the Supreme Court or subsequent legislative action. It sounds, from what I can gather, like the NSA program is functioning as designed (it’s hard to be certain since everything about it classified, but let’s play along for the moment). The law passed both houses of Congress, was signed into law by the president, is administered by a court and has not been turfed by SCotUS. Done and done.

The thing is, the process I just described means that if Congress passed legislation explicitly banning free speech, or establishing Catholicism as the official state religion, or banning blacks and women from voting, or granting police the right to enter your home anytime they like without a warrant, or eliminating habeas corpus, and if the president signed the law, and if the Supreme Court found nothing wrong with it, then that law would be legal in the same way that current domestic surveillance programs are legal.

So when an Obama mouthpiece or a Capitol Hill Republican screeches that the program is legal, understand that for what it is. A law can be immoral, unconstitutional, racist, sexist and oppressive in a hundred different ways while being perfectly legal.

And when you get the corrupt leaders of two parties in agreement over the need for and value of a security state, and they’re able to install five or more like-minded individuals on the nation’s highest court, they have assumed the ability to ignore the Constitution whenever they feel like it.

The NSA spying program is legal, but it is unconstitutional. I suppose you could, in the spirit of tedious technical accuracy, say that it’s constitutional if the Supreme Court says it is. But Edward Snowden, like a lot of us, believes that the Bill of Rights means what it says. A lot of people believe that when a government uses its legislative and judicial apparatus to pretend that words don’t mean what they clearly say that it has forfeited its legitimacy.

How many people believe this and what are they prepared to do about it? This is the tipping point upon which we are balanced, and only time will tell whether the citizenry will demand that its government stop hiding behind a corruption of the word legal and begin behaving in accordance with the principles unambiguously codified in the Constitution.

In the meantime, whenever you hear the words “legal” and “illegal” being used to damn Edward Snowden, understand: you are being manipulated and lied to.

18 replies »

  1. This is an interesting rhetorical point. I always thought the left’s use of the “illegal wiretapping” to slap Bush around always missed the more point anyway that they couldn’t make because they had passed the PATRIOT Act too. This provides an interesting macro frame to place those little instances where “legal” is parsed from “constitutional.” Good job, there.

    I don’t personally make a distinction between the two and I don’t think most others do either. That which is unconstitutional is inherently illegal whether the court’s gotten around to it or not.

    But, I think there are also deeply embedded political reasons for the use of “legal” that don’t necessarily have to do with this incident. I think “constitutional” asserts a more atmospheric and high-minded set of ideas whereas “legal” gives the impression of a concrete authority – thus, reliving the citizen of the heavy lifting of deciding right or wrong for themselves. So, while it might political trickery and linguistic spin it might also simply be a habit at this point – a way to stand separate from the tea-partiers and ACLU scions and assert (bullshit as it is) the final authority the comes with mainstream politics, controlling the government and “owning” the law.

    • I don’t know. If the complaint for a decade has been that X is illegal, when I prove that it IS legal I have kneecapped you pretty good.

  2. Several months ago, in Clapper et al v. Amnesty International et al, SCOTUS decided along partisan lines 5-4 that the plaintiffs had no standing. Clapper being the Director of National Intelligence, and the ACLU being one of the additional plaintiffs in this case to argue that the new FISA law was unconstitutional. In its ruling of no standing, the conservative majority on SCOTUS effectively barred any arguments about the constitutionality of the law from ever being examined, argued, or determined. One could take the narrow view that the conservative justices based their decision on a necessary legal technicality, or one could take the broader view that it was first and goal and they chose to punt the football.

    From the majority opinion: “Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. … Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. …. Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.”

    So, basically, the conservative majority on SCOTUS is requiring the plaintiffs to clear two impossible barriers in order to achieve standing. But even if possible to clear those hurdles, as was done in al-Haramain Islamic v. Obama—where the court somehow managed to find wiretapping laws were violated, despite the plaintiff having to forfeit the right to use a relevant sealed document—the appeals court then ruled that Congress FISA law didn’t waive sovereign immunity rights for the government. It gets even more frustrating and confusing when considering that the 9th Circuit Court of Appeals which made that decision had only a few months earlier barred a similar case against the telecoms in a judgment rendered on the grounds of upholding the legality of retroactive immunity, and that the plaintiff could still sue the government!

    To sum up, we have an impenetrable circular maze of law that has been enacted by Congress and the President, with a Supreme Court disinclined to examine the constitutionality of such laws, together which bind or handicap lower and appeals courts from making any effective judgments against abuses. While Samuel Smith is certainly correct here about the importance in stressing the unconstitutionality of such laws, this is something that has already been argued before. I would submit the correct course of action isn’t waiting on optimal conditions to create the ideal case and relying on the SCOTUS to 1) take the case, 2) agree to argue the merits on the proper grounds, and 3) render a favorable ruling based on those desired grounds. Whether Snowden’s revelations now changes the dynamic is, of course, a matter for reasonable speculation, but I don’t see it having much impact in the judicial arena.

    Rather, it is incumbent upon all of us to create the necessary political pressure that forces both our legislative and executive branches to apply the correct legal remedies, thus ending these egregious assaults against our rights and liberties that have been committed for dubious reasons. Bipartisan political pressure will also be felt by the judicial branch, and could help speed the process along parallel lines. And while many liberals, progressives and libertarians have been actively opposing such infringements and overreaches since 9-11, we are fortunately starting to see more and more independents and conservatives coming around (even if many of the latter are looking to politically exploit the issue), which bodes well for affecting change.

    Part of the problem lies with the secret FISA court itself. According to Reuters, “Twelve of the 14 judges who have served this year on the most secret court in America are Republicans and half are former prosecutors.” Keep in mind it isn’t the President appointing judges to this secret panel; it’s the Chief Justice, a position held by conservative for many years, and will likely remain thus for many more. Rubber stamp secret panel? You decide:

    “Between 2001 and 2012, the FISA judges approved 20,909 surveillance and property search warrants – an average of 33 a week. During that 12-year period, the judges denied just 10 applications. Prosecutors withdrew another 26 applications.

    From 2007 to 2012, FISA judges also approved 532 “business record” warrant applications, the category used in the order that directed Verizon to release metadata on all phone calls inside the United States. No business record warrants were rejected.”

    • While the citizenry pursuing correctives by electing legislators and a president who respect the Constitution is a great idea in theory, we have sadly reached the point in our society where you might as well be recommending that we have our fairy godmothers wave their magic wands and take care of it. The reality is that this program is all part and parcel of a new feudalism, an unprecedented class structuration, and all the money you need to win an election is lined up on the other side of the fence. It’s now rather baldly about keeping the peasantry under control, and when the 400 richest Americans have as much wealth as the 150 million poorest, well, you do the math.

      • We are in agreement that big money interests have too much control over our government (I would add our media also), and that it is detrimental to our democracy. But who gave them more control in Citizens v. United? SCOTUS. I agree too about the income disparity not seen since the robber baron days in this country. For that, I think conservative economic policies practiced by both Democrats and Republicans are largely to blame, and I don’t think they help the economy as a whole. I would also agree that much of the electorate today is not inclined to think very deeply about such matters.

        One could make the same fairy godmother analogy about waiting for SCOTUS to declare FISA laws unconstitutional. The solution going forward I think has to lie with the people, and elections are but one element in the equation. Public opinion can and does influence our politicians and even the Justices on the Supreme Court. What is the point of your post here; why did you choose to write about this? Not to influence any judges, I don’t imagine, but to educate, inspire critical thought and motivate people to act against these assaults on our liberties.

        • I don’t really disagree with any of your analysis at all. I think I’ve just reached the point where I don’t see much hope anywhere. Executive, Legislative and Judicial branches all have been thoroughly co-opted by the neo-feudal elite.

          As for why I wrote it, that may be the best question of all. It isn’t because I expect to make a difference. I told a colleague a few days ago that I think the only reason I keep at it is because I’m building a platform that will help me say “I told you so.”

          Doesn’t make me sound terribly noble, that’s for sure…..

        • We’re all susceptible to disillusionment, fatigue and cynicism, but it’s up to each of us not to let the dream die. I suspect despite your words you haven’t stopped dreaming of a better world. And you’re probably more noble than you think.

  3. Not to get too far off track, but in a related matter, the Obama administration is scurrying after the Snowden revelations to complete implementation of its Insider Threat Program (ITP), introduced in late 2011 after Bradley Manning’s WikiLeaks bombshell. This broad Orwellian program doesn’t just confine itself to security areas, but applies to most government agencies, giving them wide latitude in constructing their own rules.

    Government employees who fail to report the suspicious activities of coworkers—whatever that may be—are subject to criminal penalties. From McClatchy:


    If one looks at just this element or another separately in the Federal government’s questionable and unconstitutional practices, it becomes easy to make justifications. Taken together as a conglomerate, however, a pattern clearly emerges which everyone should find highly disturbing and alarming.

    And, despite the supposedly greater protections provided to whistleblowers, they still may find themselves unfairly targeted, severely maligned and unduly harassed, as was Julia Davis, a Customs and Border Protection Officer who was just doing her job and following procedures. The shocking details can be seen here in this television interview:

    The McClatchy article can be found here:

    • Apologies for not realizing certain symbols would be taken as html and erase text from this previous post. Here is the integral missing text referenced from the McClatchy article:

      ‘Obama ordered greater protection for whistleblowers who use the proper internal channels to report official waste, fraud and abuse, but that’s hardly comforting to some national security experts and current and former U.S. officials. They worry that the Insider Threat Program won’t just discourage whistleblowing but will have other grave consequences for the public’s right to know and national security.

      The program could make it easier for the government to stifle the flow of unclassified and potentially vital information to the public, while creating toxic work environments poisoned by unfounded suspicions and spurious investigations of loyal Americans, according to these current and former officials and experts.


      “The danger is that supervisors and managers will use the profiles for ‘Disgruntled Employees’ and ‘Insider Threats’ to go after legitimate whistleblowers,” said the second Pentagon official. “The executive order says you can’t offend the whistleblower laws. But all of the whistleblower laws are about retaliation. That doesn’t mean you can’t profile them before they’re retaliated against.”


      The policy, which partly relies on behavior profiles, also could discourage creative thinking and fuel conformist “group think” of the kind that was blamed for the CIA’s erroneous assessment that Iraq was hiding weapons of mass destruction, a judgment that underpinned the 2003 U.S. invasion.

      “The real danger is that you get a bland common denominator working in the government,” warned Ilana Greenstein, a former CIA case officer who says she quit the agency after being falsely accused of being a security risk. “You don’t get people speaking up when there’s wrongdoing. You don’t get people who look at things in a different way and who are willing to stand up for things. What you get are people who toe the party line, and that’s really dangerous for national security.”’