NSA Surveillance Is Legal, and That's the Worst Thing About It

One of the most disturbing realities the surveillance revelations have brought into relief is that in its drive to safeguard national security, the Obama Administration has concocted tactics that draw a sharp line dividing the state and the public, casting the latter in the role of potential conspirator.
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Out of the three main arguments in defense of sweeping NSA surveillance -- it's legal; it keeps us safe; it's not that intrusive -- the lamest and most tone-deaf by far is the first. That's not because it's untrue; it's because it is true.

The president and his allies argue that the NSA's telephone metadata gathering is a legitimate exercise of state power because all three branches of government have signed off on it. Some pundits are buying that line, some slavishly so (not to be outdone in its contempt for public accountability, the Wall Street Journal's editorial board complains of too much government oversight and advises taking the judiciary out of it).

There's obviously no shortage of controversy over that claim. The degree to which lawmakers outside of a select circle of members of the House and Senate intelligence committees were afforded a meaningful opportunity to be read into the NSA programs is a matter of fierce dispute. And the FISA courts, with their secret, non-adversarial, government-only proceedings, have always existed in a murky and Kafkaesque purgatory of constitutionality.

But even if it is true that legislators were widely and duly briefed on the surveillance programs, that shouldn't allay the concerns people have over the growing imbalance in power and prerogative between the government and civil society -- it's reason for even further alarm.

One of the most disturbing realities that the surveillance revelations have brought into relief is that in its drive to safeguard national security, the Obama Administration has concocted policies and tactics that draw a sharp line of division between the state and the general public that tend to cast the latter in the role of potential conspirator. The problem isn't the government's assumption that there are those among us who may wittingly or unwittingly enable terrorists (or be terrorists ourselves), which is both credible and impossible to dispute. It's that in the Administration's view, our very understanding of what the government is doing and how it does it is deemed a priori an unacceptable security risk. It's not only the secrecy around the NSA's databanks of phone records: it's the AP spying, the Stasi-like investigation of James Rosen, the merciless pursuit of leakers and whistleblowers -- it's the Administration's entire attitude toward public scrutiny of its conduct.

Government mistrust of the public is nothing new, of course. It's been a conspicuous feature of our political landscape since 9/11, and it was even more pronounced during certain particularly terrible periods of the Cold War. That's also part of the disturbing -- if not, upon reflection, surprising -- reality that the NSA story has revealed: that President Obama's security policies are not and have never been a break from the Bush era, but merely a continuation (and digital upgrade) of the evolution of the national security state that began with the Second World War and has continued to the present, with a brief lull between the collapse of the Berlin Wall and 9/11.

In this light, the possibility that Congress went along with the judiciary (if you can consider the FISA court that) in approving the NSA surveillance regime is in no way reassuring. To the contrary, it demonstrates that when it comes to national security issues, there are no longer any meaningful checks and balances within the formal structure of government. By all appearances, on security matters, in the absence of a political crisis, members of Congress, Administration personnel and FISA court judges see themselves as part of the same special team -- and not just Team America along with the rest of us. They're the security-cleared elect, with their own sets of keys and handshakes and secret passwords, who know things we don't and have a grave responsibility to protect us by keeping each others' secrets safe from our prying eyes -- as they've apparently been doing for the past seven years. We just need to learn to trust them.

Whether your experience of the last dozen years has inclined you to trust them or not might help explain your reaction to the Snowden leak. As Josh Marshall explains:

Here is I think the essential difference and where it comes back to what I referred to before -- a basic difference in one's idea about the state and the larger political community. If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of U.S. foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.

From that perspective, there's no really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.

On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They're attacks on something you fundamentally believe in, identify with, think is working on your behalf.

Marshall is squarely situated in the latter camp. Marshall started off during the Bush-Gore recount fight as an exceptionally smart, rabble-rousing liberal blogger. His remarkable professional success in the years since as both an investigative journalist and a political pundit has been rewarded with entrée into distinguished circles of the Washington D.C. political establishment. It's not hard to see why he so readily identifies with the state (and its military) and regards crimes against it as a crimes against his own "political community":

At the end of the day, for all its faults, the U.S. military is the armed force of a political community I identify with and a government I support. I'm not a bystander to it. I'm implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does. I think a military force requires a substantial amount of secrecy to operate in any reasonable way.

It's probably not going too far out on a limb to imagine that most legislators, federal judges, Administration officials and members of the D.C. press corps share Marshall's spirit of solidarity with the state (David Simon is a little tougher to explain). It's easy for these people to look at the NSA surveillance story and fail to discern what many outsiders do: a government rushing to consolidate state power, arrogant in its authority and detached from the population it purports to defend. To those who regard themselves as kin to the political class, it's tautological that because it was legal, massive surveillance is a legitimate state prerogative. To those of us who do not share that kinship, the fact that it's legal is precisely what makes it so dangerous.

Leighton blogs at Dog Park Media.

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