Both of those claims, of course, were exposed as lies by
Snowden’s disclosures. So at minimum Snowden deserves
the title “whistle-blower” (and the attendant
protections that are supposed to come with such a title)
because his disclosures outed Clapper and Alexander’s
statements as probable cases of illegal perjury
before Congress. In other words, in terms of perjury,
the disclosures didn’t expose controversial-but-legal
activity, they exposed illegal behavior.
That’s not some technicality, by the way; the whole
reason perjury before Congress is considered a serious
crime is because if executive branch officials like
Clapper and Alexander are permitted to lie to the
legislative branch, then that branch cannot exercise its
constitutional oversight responsibilities. Harsh
punishment for perjury is considered a necessary
deterrent to such deception.
There’s also the issue of whether the NSA’s surveillance
itself is legal, and whether Snowden’s disclosures show
the NSA is continuing to break U.S. federal statutes
(we’ll get to the Constitution in a second). Yes, you
read that right: The word “continuing” is appropriate
because back in 2009, NSA officials admitted they were
breaking the law.
As
the
New York Times reported at the time, the agency
“intercepted private e-mail messages and phone calls of
Americans in recent months on a scale that went beyond
the broad legal limits established by Congress.”
Additionally, the Times noted that “several intelligence
officials, as well as lawyers briefed” about the illegal
activity “described the practice as significant and
systemic.” Meanwhile,
Sen. Jeff Merkley, D-Ore., yesterday declared that
his review of the program proved it violates federal
statutes.
“When I saw what was being done, I felt it was so out of
sync with the plain language of the law,” he told MSNBC.
In
light of the NSA itself already admitting it broke the
law in “systemic” fashion; in light of a prominent
senator saying the program is illegal; and in light of
the
“Boundless Informant” disclosure showing the NSA may
be broadly surveilling domestic (rather than exclusively
foreign) communications as statutes are supposed to
curtail: In light of all that, why would anyone simply
assume at face value that the program Snowden exposed is
perfectly legal?
Finally, over and above whether the NSA program is
complying with federal statutes, there’s the issue of
the program’s constitutionality — aka the ultimate
definition of “legality.”
Permanent Washington and Obama partisans who support the
NSA surveillance program cite the Patriot Act and the
fact that NSA obtained a FISA warrant as proof that the
program is legal and as a way to ignore the
constitutional questions. They would have us not only
ignore the NSA’s own aforementioned admissions of
illegal behavior, but additionally have us believe the
constitutionality of NSA’s unprecedented surveillance
and of such a broad-sweeping
“ongoing” FISA warrant has already been definitively
established, even though, of course, it hasn’t. Not even
close.
Four cases are particularly relevant here. In the first
two (ACLU
vs. NSA and the
al-Haramain charity case), district courts ruled for
plaintiffs in their arguments that the NSA’s warrantless
surveillance is illegal. There was also the Clapper vs.
Amnesty International case, which challenged the
constitutionality of the underlying FISA law, which
authorizes the kind of surveillance that Snowden’s
disclosures document. And, according to Mother
Jones, there is “an 86-page court opinion that
determined that the government had violated the spirit
of federal surveillance laws and engaged in
unconstitutional spying.” In that latter case, the
Office of the Director of National Intelligence actually
admits that the NSA has engaged in behavior that is
“unreasonable under the Fourth Amendment” and that
“circumvented the spirit of the law.”
In
the first three cases, technicalities won the day when
they were
all
eventually
overturned not on grounds that the NSA’s mass
surveillance is constitutional, but on grounds that the
plaintiffs supposedly didn’t have standing. Summing it
up,
Reuters reports, to date, “The (Supreme Court) has
refused to review government surveillance practices
adopted since the attacks of September 11, 2001.”
Why weren’t all these plaintiffs granted standing, you
ask? As legal expert Marcy Wheeler notes, it’s all
related to — you guessed it! — secrecy.
“The government has gone to great lengths to say because
this is all secret, no one can prove they’ve been
surveilled, so (plaintiffs) can’t make a harm argument,”
she said.
Put another way, it’s difficult to prove a case against
the government when the government is allowed to keep
case-critical information classified.
Meanwhile, on the fourth case reported by Mother Jones,
the government is still fighting to keep the court
ruling secret.
All of that brings us back to Snowden’s disclosure. With
his whistle-blowing, more germane details about the
NSA’s entire surveillance operation are now public,
meaning other plaintiffs may now have access to
information necessary to achieve standing. And there
are, indeed, already other plaintiffs: For instance,
Sen. Rand Paul (R) is promising to mount a Supreme
Court challenge to the constitutionality of the broad
FISA warrant at issue in Snowden’s disclosure (at issue
will be the yet-to-be-adjudicated question of whether
such an
“ongoing” warrant that allows spying on millions of
Americans really comports with the Fourth Amendment’s
“probable cause” precept). Similarly, the
Electronic Frontier Foundation already has a case
against NSA surveillance pending.
Those cases coupled with the information from Snowden
could, in turn, compel an explicit Supreme Court ruling
on the entire surveillance system’s legality.
Looked at from a constitutional perspective, then, we
shouldn’t simply assume Snowden’s disclosures are about
a controversial-but-legal NSA program, as NSA defenders
and Obama loyalists assert. Instead, it’s quite possible
they may help definitively prove the
illegality of the surveillance operations.
No
doubt, all these statutory and constitutional questions
surrounding the NSA’s surveillance operations are why
when publicly claiming that the program is perfectly
legal, Obama officials also, according to
Businessweek, refuse to make public their
jurisprudential justifications for such a claim. They
clearly fear that when subjected to scrutiny, the
program will be shown to be, as Sen. Merkley put it,
“Out of sync with the plain language of the law.”
Thus, the administration’s strategy is to at once
stonewall on the details and insist ad nauseam that
everything is perfectly legal, when that assertion is,
at best, a fact-free assumption, and more likely a
devious misdirect. That Permanent Washington and so many
Obama loyalists would nonetheless echo such a misdirect
is a commentary on how political self-interest and
partisanship now trumps everything else — even the law
of the land.
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