The NSA and the criminal surveillance of Americans

By Michael J.W. Stickings

In case you missed it, make sure to read "The Criminal N.S.A.," an op-ed in Thursday's Times by Jennifer Stisa Granick and Christopher Jon Sprigman. Their argument is essentially this:

The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance. There is simply no precedent under the Constitution for the government's seizing such vast amounts of revealing data on innocent Americans' communications.

The government has made a mockery of that protection by relying on select Supreme Court cases, decided before the era of the public Internet and cellphones, to argue that citizens have no expectation of privacy in either phone metadata or in e-mails or other private electronic messages that it stores with third parties. 

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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.  

I haven't written much about it here, but on Twitter I've frequently expressed my opposition to what the NSA is doing, and more broadly to the growth and activities of the national security surveillance state. (I've also expressed my general support for Glenn Greenwald and Edward Snowden, though my view is really that it's not about them but rather about what they've exposed.)

What I've seen is that some of the most virulent defenders of the NSA and Orwellian America are on the left, where among many support for President Obama trumps all else: Obama can do no wrong, and so what he's doing with respect to continuing Bush-Cheney domestic surveillance, prosecuting whistleblowers, and otherwise waging the so-called war on terror cannot be wrong. Either that, or they don't see anything wrong with mass surveillance of Americans. One expects that sort of thing from the right, but when it comes from the left, particularly when they then attack others on the left for expressing what I and others have been expressing, it's simply grotesque.

I call these people the "surveillance state apologists of the left." And what I often hear from them is that it's all legal, end of story. First, what is legal is not necessarily what is right or just. Slavery used to be legal. What the state does in Orwell's Nineteen Eighty-Four is legal, because the legal is simply a code of acceptable and unacceptable behavior enacted by the ruling power. There was a lot that was legal in Nazi Germany that I think we can all agree was unjust. But second, is it really all legal? Not according to Granick and Sprigman, who are right, I think, to call it criminal.