Cindy Cohn at the Electronic Frontier Foundation addresses the New York Times' eternal agonizing over its internal decision to delay, by 13 months, a major 2005 story about warrantless wiretapping by the Bush administration. That decision still raises doubts about the Times' relationship with government officials, and led to Edward Snowden bypassing the gray lady when looking for a willing outlet for this year's revelations about NSA spying (that's NSA honcho, Gen. Keith Alexander, pictured). Cohn takes issue with Times' staffers conclusions that all of this intrusive surveillance is now legal, arguing that the Obama administration relies on tortured interpretation of the law to intercept phone and Internet communications. But Cohn is letting herself get caught up in an side-show argument that ought to be left to the increasingly irrelevant scribblers at fading media institutions. In fact, it doesn't matter if the government's vast surveillance schemes are legal. What matters is that the spying is despicable and should be fought, frustrated, and sabotaged by anybody with the means to do so.
In an article on the controversies and debates swirling around the 2005 article, Times' public editor Margaret Sullivan quotes Eric Lichtblau, one of the authors of the article, on the fallout.
Given the law of unintended consequences, and a fair helping of irony, the publication of the warrantless eavesdropping story resonates now in quite another way: The furor it caused prompted the Bush administration to push hard for changes in the laws governing surveillance.
“Our story set in motion the process of making all this stuff legal,” Mr. Lichtblau said. “Now it’s all encoded in law. Bush got everything he wanted on his way out of office.”
There may be public outrage over the latest wave of surveillance revelations, but the government has a helpful defense: Hey, it’s legal.
Hold on there, writes Cohn. Not so fast.
Not so. The government's claims of "legality" are wrong, have been strongly criticized by national security law professors, and are currently being challenged in court by EFF, ACLU, and EPIC, among others. The Times disserves its audience by repeating them as if they were true.
In fact, the ACLU has a hearing in New York this Friday, November 22, in its key challenge to one of those “legal” claims: that the NSA’s indiscriminately collecting telephone records is “legal” under a convoluted interpretation of the section 215 of the 2001 Patriot Act that mentions neither telephone records nor the NSA. To try to make it fit, the government attempts to redefine the limits on production of "relevant" things to allow the collection of massive amounts of "irrelevant" information. In other words, by a plain reading of the statute, what the NSA is currently doing in collecting massive amounts of telephone records on an ongoing basis is not legal.
Cohn is likely correct, I think. The feds have stretched Section 215 well beyond the breaking point, relying on secret interpretations of that law, as well as on executive orders that they won't even release to the public. Chances are, given an honest judge, federal surveillance will eventually be found to have gone beyond the limits of the law.
But should we be satisfied if the judicial system proves accommodating to the silly putty theory of legal interpretations? Or what if Senate and House leaders slap themselves on the forehead, say "our bad," and pass legislation that really does authorize the snooping? Does that make it all right?
As I've written before, the answer is: No fucking way. The surveillance is intrusive, violates privacy, and empowers untrustworthy state officials with information that is too easily abused. That is, it should be illegal because it's unacceptable; it's not unacceptable because it's (presumably) illegal. We shouldn't tolerate the surveillance state whether or not Congress dots the president's "i"s and crosses his "t"s for him.
I hope the ACLU, EFF, and EPIC are successful in their legal challenges to government surveillance for tactical reasons—it's a path to victory over the snoops. But that doesn't mean we should stop fighting the surveillance state even if politicians extend the cloak of legal rectitude to cover its transgressions.
A legal surveillance state still needs to be drowned in the creek.