Domestic spying is legal because the government says it is

Earlier this month, The Guardian and The Washington Post published two sets of supposedly astonishing revelations about the reach of the federal government’s electronic surveillance system. However, neither the news of the government’s ongoing collection of cellular telephone metadata nor the news that the National Security Agency collects data from nine of the largest internet companies should come as a shock to anyone. These programs have been in place for years and are mere extensions of the snooping the government has done for decades on its citizens.

The real story here is the convoluted and complicated discussion this drama started. It touches on how some choose to justify the existence of these surveillance programs and how we allowed — maybe even encouraged — this to happen.

Edward Snowden, the man responsible for the leaks on the PRISM program, is routinely vilified by many on both “sides” of the political spectrum for being at best, a felon and at worst, a traitor. After all, the argument goes, he did not reveal an illegal operation, which is what a whistle-blower does. Instead he “leaked” classified information about a perfectly legal operation. But what is really disturbing here are the incredibly asinine arguments that are being used to defend PRISM, the most offensive of which is the assertion that this domestic spying program is legal simply because the government does it.

In increasing measure after World War II, various federal agencies carried out a number of official, unofficial, and entirely illegal programs involving wiretaps, agents provocateur, disinformation, and propaganda against a variety of targets — and that was only within the United States. Outside of our country, there were assassination plots and revolutions that destabilized unfriendly governments. It was only in the years after the Watergate scandal that the public made enough noise to encourage Congress to act. As a result, the Church Committee was formed and promptly chastised the national intelligence community for doing all of these terrible things.

However, the military and intelligence communities clearly learned a valuable lesson from the Church Committee — namely, make whatever you want to do legal and then swear members of Congress to secrecy. This is the key reason that many politicians and their faithful media pundits are insisting on calling Edward Snowden a “leaker.” After all, the PRISM program and whatever else the collective snoops in the government are doing is completely legal. The court order for Verizon? It’s happened every three months for years, and it’s “legal.” Our invasions of Iraq and Afghanistan? They are completely “legal.” To paraphrase Noam Chomsky, America’s operating principle is, “What we say goes.”

The arguments in support of the NSA’s actions are spurious. In fact, they’re quite similar to an argument Harvard law professor Akhil Amar used to defend the U.S. Supreme Court’s ruling that taking warrantless DNA swabs of arrested suspects is not a violation of the Fourth Amendment’s dictate against illegal search and seizure. As Amar said on MSNBC’s All in with Chris Hayes, the Fourth Amendment does not require officers to get a warrant to search individuals, and furthermore, we shouldn’t expect one anyway because there are plenty of cases where searches and seizures are done without probable cause, much less warrants, “literally every day in America.” In order to prove his point, Mr. Amar offers up a few examples — TSA screenings at airports, searches by customs officials at the border, and Terry stops (a.k.a., the “stop and frisk,” our generation’s “no-knock” search), none of which are the same thing as allowing law enforcement to reach inside someone’s mouth and take a DNA sample. In essence, this “top” legal scholar is proclaiming that we should not challenge the authority of the federal government to violate an individual’s Fourth Amendment rights because these things are everyday occurrences. They’re routine.

This is a dangerous argument to make, as it completely obviates the very reason citizens make legal challenges against the power of the state. According to this line of thought, the mere existence of an activity by agents of the state against its citizens legitimizes those actions. This is unquestionably the worst imaginable argument in favor of government power ever produced by a serious legal scholar.

Once upon a time, denying people the right to vote based on race or gender was legal. So was child labor. So was, in the position of the Bush Department of Justice, “enhanced interrogation.” And today, so is the Obama administration’s use of drones to kill “enemy combatants” or “anyone near the target.” According to the line of logic put forth by Mr. Amar and other pundits, the public scrutiny of these issues is now beyond the pale. There is no reason for us to question our government as long as it can claim that what it is doing is legal.

Worse still is the general political posturing and inconsistency of both supporters and critics of the NSA program. Many conservative supporters of the surveillance program, citing its legality, were only months ago decrying the legality of the Affordable Care Act, which is the law of the land. Meanwhile some liberal supporters are unhappy with legal prohibitions against gay marriage yet fully support the legality of the government’s right to monitor our phone records and email. If anything could prove that our leaders are mostly inconsistent pinheads, it might be this issue.

This is where we finally understand the lesson that everyone should have learned from the Church Committee all those years ago. Back then, the public was informed that the government was in the habit of routinely spying on more than just active, violent threats to the country. The government was also spying on nonviolent members of the civil rights, worker’s rights, and anti-war movements. Of course, most folks didn’t have a problem with this. After all, everyone at the time knew that these movements had been infiltrated by the damn communists, so there was nothing wrong with keeping a watchful eye on them, just like the Patriot Act was supposed to keep an eye on all those damn Muslims, and only the Muslims. Americans were more than OK with this sort of thing when the Patriot Act was signed, and they still are according to recent polling.

Now it turns out that in order to watch all the supposed threats to America’s national security, the government has largely tossed out the concept of personal privacy, along with the entire notion of how criminal surveillance is supposed to be conducted. As Wyeth Ruthven, former legal counsel for the S.C. Democratic Party, stated on Twitter last week: “I want my govt to spy on suspected terrorists. I don’t want govt to say ‘Let’s start with everybody & work backward to the suspects.'”

Well, then, perhaps we should have been more vigilant about what the government was doing. Of course, we haven’t been because up until now the perception existed — and still exists today — that the government only spies on people who deserve to be spied on.

In Germany after World War II, Martin Niemöller gave speeches which contained what would later be published as a poem. It is called “First they came …” and it tells of how the silence of the German people in the 1930s allowed the Nazi government to slowly eliminate its enemies until, at last, they come for the speaker. By then, there is no one left to oppose his being taken by the regime.

There is, it seems, no one left to speak for us.

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Domestic spying is legal because the government says it is