Mar 24

A few weeks back, I wrote that the NSA defends itself by using a version of English only spoken within the intelligence community. (See this Slate piece for how “surveillance”, “collect” and “no” mean different things in the intelligence world than in the rest of America.)

Yet that Slate article missed a few good examples of how the NSA abuses the English language. The last time I “Got Orwellian”, I wrote about President Obama’s liberal use of the phrase “ordinary Americans” to defend the NSA. Today, I want to tackle another another word that has bugged me: “legal”,  in that the NSA’s programs were “legal.” (For the most common uses, see General Keith Alexander’s repeated defense of NSA programs as “legal” here, here, here and here.)

Were those programs “legal”? Imagine this hypothetical. Facing budget shortfalls, Congress passes a new law to save on military spending. Instead of forcing troops to pay for their own houses, Congress requires any citizens living near military bases to house and quarter troops. President Obama, in an act of bi-partisanship, signs this law. He then orders the military to execute the law, and they start planning. Eventually, troops start living with civilians in their homes.

To be perfectly clear, the Pentagon legally acted on President Obama’s order, as in the Pentagon obeyed/followed laws passed by Congress.

As any one who has read the Constitution can attest--and so many politicians claim they love the Constitution that they now read the Constitution on the House floor (leaving out, of course, that whole 3/5ths thing)--quartering troops is clearly unconstitutional. I deliberately chose the oft forgotten 3rd Amendment, which prohibits quartering troops, because no one worries about having to house soldiers, nor could anyone really call that constitutional. Unlike other amendments, pundits and politicians don’t argue over the 3rd.

This thought exercise illustrates perfectly a clear gap between legal actions and legal yet unconstitutional laws. Supporters of the NSA completely miss this distinction.

Critics of the NSA aren’t simply claiming that the NSA is acting illegally (though there is plenty of evidence that the NSA exceeded its legal authority in any reasonable interpretation of the Patriot Act). Critics argue the NSA is acting unconstitutionally. In this interpretation, it doesn’t matter that Congress passed a law and the President is enforcing it; the law doesn’t pass Constitutional muster in the first place. American history is filled with laws that were deemed unconstitutional by the courts.

Unfortunately for the American people, we can only challenge unconstitutional laws in court. Doubly unfortunately, the Intelligence Community does most of its dirty, unconstitutional work in secret. Congress passed the Patriot Act publicly, with a few classified sections, which the NSA interprets in secret, gets approval from the FISA court in secret, and then executes in secret. The entire snooping apparatus was secret.

Only after the Snowden disclosures did critics have the standing and the ability to challenge the constitutionality of these programs.

Take a key piece of the Patriot Act, national security letters. These letters--unconstitutionally--made it illegal to tell anyone an intelligence agency had contacted you to execute a search warrant. They also prevented recipients from challenging them in court. The intelligence agencies approached companies like Google, Yahoo, Verizon and others (including civilians) with these letters, and threatened criminal prosecution if they told anyone they had started spying on Americans.

Without a whistleblower like Edward Snowden, and hopefully others in the future, we never would have found out about this program. Not because the law isn’t legal--though many doubt the NSA’s interpretations will stand in court--but because the laws are unconstitutional in the first place.