A U. S. federal appeals court ruled on Thursday, May 7, that Snowden is correct: NSA collection of phone records is illegal. Snowden, speaking from exile in Russia because the U. S. government considers him a spy, called the ruling “extraordinarily encouraging.”
Do you think NSA will stop collecting phone records because a federal appeals court rules that such collection violates the law? Of course not. Do you think the federal government will drop their charge of espionage because the appeals court vindicated Snowden? Of course not, again. What does that tell you about the appeals court, and the rule of law in the United States? It tells you the federal government will do what it likes. Courts may have authority over other matters, but they do not have authority over issues of national security, or over agencies of the national security state.
The national security state is autonomous. We’ve known that for a long time. As part of a tacit deal, however, we expect intelligence agencies to acknowledge the law, and to act in enough good faith that these agencies will not violate legal boundaries too blatantly. Snowden’s evidence shows that the deal is totally off. It shows that NSA’s programs have completely severed their relationship with any kind of legal constraints. The extraordinary recklessness of NSA’s programs actually made people take notice, and we know what it takes to make Americans take notice of technical, potentially legalistic subjects.
Snowden made people say, “Whoa, what is happening here?” He also made people see that NSA operates under no authority but its own. It does not answer to the president, the National Security Council, Congress, any committee of Congress, the court that administers the Foreign Intelligence Surveillance Act, the Director of National Intelligence, any cabinet officer, any court, any branch of the Department of Defense, any other intelligence agency, or any review board of any kind.
Note that bulk collection of domestic phone records was illegal before Thursday’s court ruling. Nowhere in the long history of court rulings and legislation on Fourth Amendment rights has anything like this program even been conceived, let alone authorized. We knew that NSA and other agencies like to test and stretch limits on their programs and activities. Like two-year-olds, they want to see how far they can go. Until Snowden, however, no one believed they would go as far as they did.
Not even the Patriot Act, that horrendous collection of security measures that government uses to undercut the Constitution, ever contemplated programs like these. Yet Congress, in our names, has voted to keep these laws in effect! Who would be unhappy, at this point, if Congress voted to repeal the Patriot Act? As I indicated above, however, acts in Congress would not change the national security state’s behavior. The damage is done.
Existing institutions do not give up power they already have. You cannot walk up to customer service at NSA and say, “I’d like to file a complaint.” Congress, the courts, and the president all recognize the security state’s autonomy. Lest we feel discouraged about the likelihood or feasibility of change, though, remember that Edward Snowden acted on the idea that a different future might actually happen. He observed secret, illegal activities and decided to act, to see if these activities, once disclosed, might be stopped. Let’s see if we can make him right.
In publication since 2009, The Jeffersonian occasionally publishes topical collections of essays on politics, such as Revolution on the Ground and Infamy. To learn about these and other books, visit Dr. G’s Writing Workshop. For philosophy and other interesting reflections, visit Conversations with Dio.