Stewart Baker, describing himself as formerly “the NSA’s top lawyer” in addition to being “in the top policy job at the Department of Homeland Security”, offered a puzzlingly bizarre explanation for “Why the NSA Needs Your Phone Calls… and why you (probably) shouldn’t worry about it” earlier this month in Foreign Policy, in which he confirms that the NSA’s surveillance of Americans is illegal while insisting, as though he thinks he has some kind of Jedi mind powers over his readers, that the program is lawful.
He begins by urging readers to “be cautious about rushing to the conclusion” that the NSA collecting the phone records of every American is a “massive, lawless new intrusion into Americans’ civil liberties”.
Why, this is a perfectly lawful massive intrusion into your civil liberties!
The astute reader might already be asking how the government can at once blatantly violate the 4th Amendment to the Constitution and the individual right to privacy and yet still be acting lawfully.
For the weak-minded reader, though, who does not trouble himself with asking such questions, Baker waves his hand and intones, “this is not some warrantless or extrastatutory surveillance program.”
And unless Baker’s Jedi mind tricks have worked on you, you will note that actually, yes, it is a warrantless surveillance program, unless Baker wants to argue that the government has issued a blanket warrant against every single American to obtain their private phone records without probable cause that they are engaged in any criminal activity. That is to say, the only way Baker can sustain this dismissal is by openly declaring that Americans now officially live in a police state (something which, unofficially, we have already known for some time now).
His argument for why it is legal is that a few people from one part of the government had to convince a few people in another part of the government that this mass surveillance was “lawful”. Therefore, “you can’t say it’s lawless”.
Actually, I can. It’s lawless. There. See? I said it. I know, we’re not supposed to question that twelve people in the Justice Department have the authority to issue the infallible truth about how the Supreme Law of the Land is supposed to be interpreted, but, hey, I’m a rebel.
He adds for good measure that “it’s a near certainty that the legal theory behind orders of this sort has been carefully examined by all three branches of the government and by both political parties.”
Now aren’t you reassured? Just so long as there is a secret consensus among officials with the required security clearance (which excludes, e.g., most members of Congress) within the government that their own actions are lawful, then, by definition, it must be lawful! See?!
And, oh, by the way, the Justice Department is an Executive agency, not to be confused, as Baker seems to do (not surprisingly, him being a lawyer and all), with the Judicial Branch of government, i.e., the Supreme Court, which can’t very well be said to have carefully examined the program, unless we are to assume that the Supreme Court of the United States is now hearing cases in secret and issuing classified opinions on the law.
Here’s where it gets good, though. Baker then writes:
Ah, you say, but the scandal here isn’t what has been done illegally — it’s what has been done legally. Even if it’s lawful, how can the government justify spying on every American’s phone calls?
It can’t. No one has repealed the laws that prohibit the National Security Agency (NSA) from targeting Americans unless it has probable cause to believe that they are spies or terrorists. So under the law, the NSA remains prohibited from collecting information on Americans.
Did you get that? So, even if it is lawful, the government can’t justify spying on every American’s phone calls … because that is unlawful?
If your head isn’t spinning yet, Baker then adds that “the NSA may find itself prohibited from looking at or using data that it has lawfully collected.”
The question naturally arises: If “the NSA remains prohibited from collecting information on Americans”, and the purpose of its surveillance program is to collect information on Americans, how is it, again, that this information has been “lawfully collected”?
Baker reveals no less impressive Jedi power when he asserts that “it’s not that hard to imagine circumstances in which the government needs to obtain massive amounts of information about Americans”.
Actually, it is pretty hard. I, for one, can’t imagine any circumstances in which the government “needs” to massively intrude on individuals’ right to privacy in violation of the U.S. Constitution. Baker attempts to offer us one such example, in which the government wants to surveil a single terrorist making a call from a specific location at a specific hour of a specific day. Hmm… Somehow, I’m not convinced the government “needs” to collect the phone records of every single American all of the time in order to accomplish this.
Baker concludes with this doozy:
Plenty of people will say that they don’t trust the government with such a large amount of data — that there’s too much risk that it will break the rules — even rules enforced by a two-party, three-branch system of checks and balances. When I first read the order, even I had a moment of chagrin and disbelief at its sweep.
But for those who don’t like the alternative model, the real question is “compared to what”? Those who want to push the government back into the standard law enforcement approach of identifying terrorists only by name and not by conduct will have to explain how it will allow us to catch terrorists who use halfway decent tradecraft — or why sticking with that model is so fundamentally important that we should do so even if it means more acts of terrorism at home.
“Compared to what”? How about compared to, say, a “model” in which the government does not violate the Constitution and privacy rights of every single American. Why is that so incomprehensible? We are apparently supposed to think this is inconceivable because it would mean law enforcement could only “catch terrorists” if it can actually identify them “by name”, that without intruding on every American’s privacy, it would be impossible for law enforcement officials to be able to stop individuals from committing crimes or punish them for crimes already committed if they didn’t actually know the perpetrators’ names.
By this logic, of course, if a couple of cops see a masked man dressed all in black sneaking behind a house and breaking a window, they must be helpless to do anything about the crime in progress since they don’t know the name of the burglar. They must be helpless to sit in their car dipping donuts in their coffee watching the burglary go down. Obviously, this won’t due, so we need to discard “standard” law enforcement mechanisms and acquiesce to the loss of liberties under a police state.
Some of us, like Stewart Baker, live in a delusion in which enormous government “(probably)” doesn’t usurp or abuse its powers, but only acquires its authority legitimately and exercises it with benevolent intent.
Others of us live in reality.
Edward Snowden, by the way, while we’re on the subject, is truly a hero for putting his entire life on the line by exposing the government’s lawlessness. There is no greater act of patriotism. His courage and integrity should be applauded.
Dogmatic patriotism is it.