Apr 29

(Today's guest post is by John Mikolajczyk. If you would like to guest write for us, please check out our guest post guidelines.

Quick note: The views of guest writers are not necessarily the view of Michael C or Eric C. For our take, please check out the comments below.)

Everyone has an opinion on mass shootings, their causes, and their solutions. Among the endless sea of opinions on the subject, the belief that mass shootings are a common occurrence, increasing in frequency, and becoming more deadly, is perhaps one of the most widely held. Despite, as oft cited criminologist Dr. James Alan Fox (who specializes in mass murder) has said on multiple occasions, it not being true.

(For the purposes of this article, I will be defining a mass shooting as an incident in which four or more fatalities occur, although multiple definitions for “mass shooting” exist, most articles referenced here seem to use to this criteria.)

Capitalizing on this misguided belief, Attorney General Eric Holder was proud to announce during a lecture to a group of police chiefs in December of 2013, that the Federal Bureau of Investigation had “prevented” 148 mass shootings and “other violent attacks” from January through November of that year and “hundreds” of attacks had been disrupted since the inception of it’s Behavioral Threat Assessment Center in 2011.

That is quite the claim, considering the same man practically debunked his own statement a month earlier when in another speech to police chiefs he said there were an average of five “active shooting” incidents per year from 2000 to 2008. Adding that the annual average of “active shooting” incidents had tripled since then. An “active shooting,” as defined by the Department of Homeland Security, is a mass shooting or an attempted mass shooting (i.e. the Clackamas Town Center incident).

So before the FBI’s “Behavioral Threat Assessment Center” program began in 2011, there were five incidents a year, with no outside intervention taking place. Now, with FBI intervention stepping in, there are three times as many incidents a year in addition to 148 thwarted attacks in just 11 months? These numbers don’t reconcile.

How exactly does the Behavioral Threat Assessment Center prevent scores of mass shootings?

First, cases of “troubling behavior” (e.g. “bizarre behavior” coupled with an interest in firearms) are referred to the center by “federal, state, local and campus law enforcement, schools, businesses, and houses of worship.” Then center staff, composed of government law enforcement personnel and psychiatrists, evaluate the potential threat and sanction a course of action for how to proceed. However, Andre Simmons, the unit chief of the center, admits that most often the recommendation is merely a referral for mental health treatment.

Essentially, the FBI runs a mental health treatment referral center, distinguishable from the countless volunteer and state-run referral centers around the country only in that it is funded and staffed by US government personnel.

Also consider that we live in the age of “zero tolerance policies” in the American school system, where a doodle drawn by a bored tween can attract local law enforcement attention. In light of this and the current climate of fear (over the erroneous belief in mass shooting frequency mentioned earlier), it is easy to see how the FBI’s assessment center has been getting three new cases to consider every week.

Then again, all things considered, 148 mass shootings prevented sounds much better for the government law enforcement community than 148 mentally ill persons referred for treatment, right? But most likely this isn’t true.

John Mikolajczyk is currently an office administrator with a government healthcare agency and a part-time bookseller. He graduated in the top 10% of his class from Kean University with degrees in criminology and history. While at Kean, he was a standout Air Force ROTC cadet and student activist. He also received an award for “best undergraduate term paper” for his treatise on the theoretical costs of the Trojan War. In his spare time he enjoys reading, playing video games, creative writing, hiking, and walking his golden labrador.

Apr 25

Today, I’m going to defend Donald Rumsfeld.

Not as a politician, Secretary of Defense, or one of his many other job titles he has held since the 1970’s. Rumsfeld failed as a Secretary of Defense. If he were a Democrat, Republicans would have launched million Benghazi-type congressional hearings investigating how he mismanaged two wars and the military.

Instead, I’d like to defend a philosophical notion he thrust into the public sphere, the most (in)famous thing Rumsfeld ever said. On 12 February, 2002, Rumsfeld, answering a question at a Department of Defense news briefing, said…

“Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.”

And cue the media, particularly liberals, using this quote as a talking-point-punchline. For the next couple of years, this became one of those far-left liberal memes, an example of the corruption and stupidity of the Bush administration. At the time, I was well-connected to liberal anti-war activists at my college, and I heard people mock this quote often.

Not that Rumsfeld ran from it. He titled his memoir Known and Unknown: A Memoir. Errol Morris, who I really respect as a documentarian, just released The Unknown Known, a documentary about Rumsfeld. I’m sure the documentary itself is terrific and informative, but Errol Morris, on the Colbert Report, had this exchange with Stephen Colbert:   

Colbert: “Your new film is called The Unknown Known, about former Defense Secretary Donald Rumsfeld. What the hell does that mean? The unknown known? What is that?

Errol Morris: “Can I be completely honest with you?”

Colbert: “I hope you will”

Errol Morris: “I don’t know”

Really?

It’s not a simple thought, I’ll grant you that. But it is a true one. Trying to re-explain it, I can’t really shorten it any better than Rumsfeld did, except for maybe adding examples. So…

- “...there are known knowns; there are things we know we know.” For example, most Americans know that America holds prisoners in Guantanamo Bay.

- “We also know there are known unknowns; that is to say we know there are some things we do not know.” For example, we know America used torture, but until the Senate report comes out, we really don’t know how far America or its allies went, or what concrete information it gave us. Another example: until last year, we knew the Intelligence Community had a budget; we just didn’t know the specific numbers.

- “But there are also unknown unknowns -- the ones we don't know we don't know.” Until last year, most Americans were completely unaware about most of the NSA activities, like spying on heads of state in foreign countries (including allies) and collecting meta-data on telephone and internet usage.

Makes sense? Especially for liberals and small government activists, the last point illustrates this concept perfectly, and why it matters: we didn’t know what we didn’t know about the NSA and its massive surveillance of Americans. But because it was Rumsfeld (mistakenly) arguing for Iraq’s connection to terrorists, this concept--not the argument itself--got the blame.

Errol Morris should have been able to answer Colbert’s question; he wrote a whole essay on the topic for the The New York Times in June 2010:

“I found myself still puzzled by the unknown unknowns. Finally, I came up with an explanation.  Using the expressions “known unknowns” and “unknown unknowns” is just a fancy — even pretentious — way of talking about questions and answers. A “known unknown” is a known question with an unknown answer.  I can ask the question: what is the melting point of beryllium?  I may not know the answer, but I can look it up. I can do some research. It may even be a question which no one knows the answer to. With an “unknown unknown,” I don’t even know what questions to ask, let alone how to answer those questions.”

Clearly, he’s thought a lot about it. (And the title to his film isn’t actually something Rumsfeld said; it’s something Morris made up.)

There’s a larger problem, an inconsistency in what the general public wants from our politicians versus what happens when they get that thing. We want politicians to be more honest, less guarded and, frankly, more intelligent. We want them to be more human. But if they do something human, like Scott Brown, on the podium during his victory speech, telling the crowd his daughters were single, the other side of the political spectrum calls it creepy. If they do something interesting, like going on Between Two Ferns to talk about healthcare, it’s not presidential. And if they say something intelligent, like Rumsfeld did, it’s mocked.

So we end up with politicians hiding behind rote, memorized talking points, saying nothing unique, original, authentic or insightful. And we only have ourselves to blame.

Apr 24

Michael C argued last Wednesday that we could use the world’s largest supercomputer better. As he wrote:

”So, I ask you, what would be a better use of the world's largest supercomputer, trying to prevent a handful of attacks a year by terrorists or the medical innovations that could come by feeding the world's fastest supercomputer human genome data?”

Reading an early draft of the post, I responded, “That’s not the only way we could use one of the world’s greatest supercomputers.” Instead of wasting all of that technology on recording Americans phone calls and internet usage, we could use it to...

...Model Global Warming. I’m not even saying that we have to use it to support the theories of liberals. We can use it to run as many scenarios as possible. Run as much data and as many variations as you can. The government does have a supercomputer running these scenarios...and it’s only the twentieth largest supercomputer in the world. Oh, and according to research I found on Wikipedia, its memory is smaller by a factor of thousands.

...Predict the Course of Natural Disasters. The National Center for Atmospheric Research actually has a supercomputer that, in addition to modeling climate change, studies “tornadoes, hurricanes, earthquakes, droughts, and other natural disasters”, helping to improve our predictions. If it works, let’s make it bigger, instead of spying on Americans’ phone calls and internet searches.

...Model the Economy. According to Nate Silver, modeling and predicting the economy is a fool’s errand,. And he’s probably right. But imagine if this computer at Moody’s were the size of the government’s supercomputer. We’d probably get a hell of a lot closer to reality.

...Recreate the Big Bang. No life saving achievement here, but it does add to our knowledge of the world...and it would keep America on the forefront of scientific innovation.

...Figure Out the Human Body. Like Michael C described in his last post, supercomputers can help us save lives by improving medicine, folding proteins and mapping the human bloodstream in ways humans never could, two innovations that could save lives.

...Advance solar power technology. Cause, you know, that’s what the Chinese are doing with their supercomputer. Sigh.

...Something we haven’t thought of yet.

Anyway, we could do all these things. Or none of them, and spy on Americans to prevent the terrorist attacks that rarely happen.

Apr 16

(Click here to read the entire “The (Opportunity) Costs of Security” series.)

Quick question: who, in the whole world, has the most powerful supercomputer?

Answer: The U.S. Government.

Second question: What do they do with it?

Answer: Collect, store and analyze internet traffic.

For details, read this prescient Wired article by author James Bamford that describes how the NSA is building a gigantic facility in Utah to track, store, crack and read a huge chunk of the communications passing through the U.S interwebs. To help decrypt and understand all this information, the NSA is trying to build the world's most powerful supercomputer. (If you had read this article pre-Snowden leaks, well, Prism and XKeyscore weren’t stunning revelations. Those leaks, though, confirmed what many of us suspected but couldn’t prove.)

As I said in the intro to this series, I don’t want to frame the NSA’s meta-data collection in terms of privacy and civil liberties, but in the terms of economics...and loss. The computing power purchased and harnessed by the NSA has opportunity costs. By using the world’s most powerful computer to track terrorist communications, we’re not using it on other things. Things that could save more lives.

For instance, when the NSA and Congress choose to spend billions on designing and building supercomputers for eavesdropping on our phone calls and emails, we choose to not use it on cracking the human genome. Genetics scientists have become much better at decoding individual human genomes. However, doing extensive analysis requires--you guessed it--massive amounts of computing power.

(For the sake of total honesty, the U.S. may not currently hold the title of “World’s Fastest Supercomputer”. The super-computer rankings are constantly shifting. Either way, the U.S. still has several very, very powerful super-computer systems dedicated to stopping terrorism.)

So I ask you, what would be a better use of the world's largest supercomputer, trying to prevent a handful of attacks a year by terrorists, or developing medical innovations that could come by feeding the world's fastest supercomputer human genome data?

To be safe, let's run the numbers.

Assume that without the supercomputer, Al Qaeda would have the ability to conduct three 9/11-sized attacks every year. (This is, of course, a ridiculous exaggeration.) That's around 9,000 people a year saved by the supercomputer. (Again, this is a ridiculously high figure, approximately twice as many people as the actual number of Americans who have died by international terrorism since 1969 or roughly 44 times more than the average number of people who have died of terrorism since 1969). The average age in the U.S. is 36.8. The life is expectancy is around 77. That means that the computer saved around 361,000 U.S. life years. (I mean, it didn’t, but go with us here.) Go NSA supercomputer!

Let’s assume that instead of stopping terror attacks, we use all that computing power on decoding the human genome. Let’s say we target it at breast cancer alone. Let’s say this develops a cure for one form of breast cancer, or approximately 12% of the 232,000 newly diagnosed cases every year. The average person lives 5 years after a breast cancer diagnosis. Let’s say this adds on an additional 12 years. This would assume the average diagnosis age is 60, and the average survival is now normal life expectancy. (It’s a cure, remember?) This supercomputer, on a very limited and conservative estimate, just saved 334,000 U.S. life years.

Don’t think too hard; these are just rough back of the envelope calculations, filled with assumptions. Just kicking the tires a tiny, tiny bit, though, shows my thesis holds up: we are wasting computing power on stopping terrorism. That assumption of 9,000 U.S. lives saved by terrorism is ridiculously high. Ludicrously high. If the government’s computer could save even a fraction of lives by decoding the human genome (the break-even in life years), then we should use it for that purpose.

(And I just used it for breast cancer, not other cancers, or heart disease or diabetes or infectious diseases or a host of other illnesses where genetics play a part. We didn’t even mention unfolding proteins, which is both medically useful and the perfect task for a supercomputer.)

The moral? Don’t let counter-terrorism advocates fool you into thinking spending money stopping terrorism saves your life. Wasting money on supercomputers to stop terrorism is killing you.

Apr 08

It’s a sometime tactic among conservatives, when debating economics, to suggest to their liberal opponent to “take an econ class”. It happened two years ago on Facebook and Twitter when I published “The Chicago School of Counter-Insurgency”. When he was in college, our conservative uncles told Eric C, an avowed liberal, to “take an econ class” so many times that he borrowed an econ textbook from a friend and read the whole thing. 

Well, after a year of business school, I can say that I did take an economics course. [Eric C editorial: And since Michael C won’t write it, I will: he also made Dean’s list each quarter. #twinbrag.]

The criticism that I should take an economics course seemed particularly off when it came to “Getting Rid of the Chicago School of Counter-Insurgency”, because I didn’t mean to attack an entire subject matter, merely one particular ideological branch of economics that wildly underestimates the role of behavior in economics.

These attacks stung because I love economics. I love using economics--among many topics in B-school--to help explain the way the world works. B-schools make future MBA students take economics precisely because it has so many useful concepts.

Take opportunity costs. Opportunity costs are the benefits a firm foregoes by selecting a strategic option. In layman's terms, by choosing to do one thing, it means you can’t do another. In literary terms, for Eric C, Frost couldn’t walk down two paths. In business, choosing to build a factory means choosing not to use those funds to increase employee salaries, for example.

All decisions have opportunity costs, the advantages and costs of all other alternatives. Smart firms treat opportunity costs holistically, factoring in non-monetary costs like human capital, time, logistics and intangible benefits. (Though they usually convert them to the same unit, most frequently dollars.)

After 9/11, America as a nation responded to the threat of terrorism by passing the Authorization for Utilization of Military Force, the Patriot Act, the Intelligence Reform Act and hundreds of other authorizations and budget decisions. Each of these decisions by Congress, President Bush, and President Obama had opportunity costs. In liberal terms, spending a dollar on terrorism means not spending that dollar on economic stimulus, food stamps, or veterans. In conservative terms, every dollar spent means another dollar taken from taxpayers. In neo-conservative terms, every dollar spent raises the deficit.

With this in mind, we have to ask, knowing the concept of opportunity costs, was all that terrorism spending a good use of money?

We've described before and linked to the few lone voices making the intellectual argument that terrorism is rare, how unlikely it is to ever affect you or your loved ones lives. (Several times actually.) We've tried to explain how safe as a society we really are. But I’ve never written about the wasted money in terms of what we stand to lose as a society.

Why? Because opportunity costs are often abstract and especially hard to value. Fortunately, I think I have found a few prime examples of opportunity costs that I can measure. Even better, I will get to apply a little bit of back-of-the-envelope, consulting-interview-style, economic analysis to measure their impact. Obviously, I will have to make some assumptions and I will struggle to find a lot of the data.

In total, though, this is an exercise America needs to perform. Unfortunately for America, the security state doesn’t have itinerant economists trawling it for insights unlike, say, sports. Still, America shouldn’t forget the opportunity costs of the war on terror.

I mean, conservatives wanted us to take an economics course, right?

Apr 04

(To read the entire "COIN is Boring” series, please click here.)

Like any good, card-carrying liberal, I love The Daily Show. Though I love it as a whole, I hate it when Jon Stewart rails against the media without ever offering any alternatives.

Watching the show, you’d think the entire media was an endless parade of nonsensical blabber. You’d think that 95% of all Americans got their news from Fox News, CNN or MSNBC, when, at most, only three to five million people watch a cable news channel each night (which is less than 2% of the adult population). Jon Stewart doesn’t hold up other media outlets as beacons of informational enlightenment, never pointing his viewers in the direction of NPR, The PBS Newshour, The New Yorker or The Economist. (Or any number of very intelligently and fairly written blogs, like The Dish or 538.)

In short, he dishes out criticism instead of offering solutions.

Starting On Violence five years ago, Michael C and I came up with an unofficial list of guiding principles: have a take, don’t chase the news, don’t make predictions, and most importantly, “offer solutions”.

If I’m being intellectually honest, so far in my “COIN is Boring” series, I haven’t offered a single solution. I’ve bemoaned video games, board games, cable channels and Hollywood films without discussing what mediums could or have depicted contemporary counter-insurgencies well. Without further ado, COIN media that actually work...or could work:

Non-Fiction Books

When a skilled writer has over 200 pages to write about an insurgency, I think they can do the topic justice. Sure, they can’t cover every angle, detail or insurgent group, but they can convey the scope, complexity and emotional feel on an insurgency. Off the top of my head, I’d recommend Dispatches by Michael Herr, The Forever War by Dexter Filkins, Victory Point by Ed Darack or Fiasco by Tom Ricks.

Counterinsurgency is a lot of things in those books; boring is not one of them.

Blogs

Yeah, it’s a little self serving, but if you want to learn about counterinsurgencies, debate minutia, or read real life true stories, then the blogging world has you covered. Outside of the insanity of conservative milblogs, the blogging world can and does cover COIN very well. Check out our blogroll for a good idea of what to read. (We have a blogroll update coming soon, we promise).

(Just don’t criticize Clausewitz. He is a golden god.)

Novels

Wait, I haven’t reviewed the new novels about Iraq and Afghanistan yet? Dammit.

That said, if one medium could cover the scope of an insurgency, it’s the novel. A piece of long fiction can show the experience of either a soldier or an insurgent, and the balances that must be maintained among various sides in a conflict. I’m thinking of Graham Greene’s The Quiet American, Eugene Burdick and William Lederer’s The Ugly American, and, unexpectedly enough, Hemingway’s For Whom the Bell Tolls as sterling examples. Still, we haven’t seen many novels by soldiers on the current wars yet...

They must have been blogging.

Photography

Have no doubt: the wars in Iraq and Afghanistan are some of the most photographed wars in history.  On the one hand, no picture can convey the depths of an insurgency. (You just don’t have the time to cover the scope of an insurgency in one thousand words.) That said, four photographers have won Pulitzers for photography from insurgencies since 9/11. That’s pretty good, in my opinion.

Or watch Syria, Egypt or Tunisia. Citizen photography and citizen reporting defines these civil wars and revolutions. We know about war crimes in Egypt and Syria because of cell phone cameras.

Documentary

If you look at the last ten years of Academy Award nominees for best documentary, you’ll find one subject more than any other: documentaries about counter-insurgencies, including three films on Iraq (Operation Homecoming: Writing the Wartime Experience, Iraq in Fragments, and My Country, My Country) a film on Afghanistan (Restrepo), two films on the larger politics of Iraq and 9/11 (No End in Sight and Taxi to the Dark Side), and two films on Vietnam (The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers and The Fog of War).

Though I had some issues with Restrepo, I think it offers a blueprint for making a film on a counter-insurgency: follow a group of soldiers or insurgents for an extended period of time.

Unlike fiction films, documentarians feel comfortable depicting the everyday existence of regular people, instead of having the plot lead up to one final, ultimate battle. (For example, Lone Survivor added a final battle that never happened. Oh, and its depiction of counter-insurgencies was abysmal.) Unlike fiction, non-fiction can use the stories of regular people to act as a microcosm for the larger conflict.

Could a film do this? Yes...but that film wouldn’t make money so it won’t get made.

A Cable Series or Miniseries

When I wrote about film and counterinsurgency, I made two points: 1. Films about insurgencies aren’t popular. 2. They don’t have the time.

But what if we gave them more time? I think that could work to depict an insurgency on the (small) screen. This hasn’t been done yet, but I have no doubt that a Wire-esque series on either Iraq, Afghanistan or the mountains of Pakistan could be critically acclaimed, if not popular. (Or as we wrote about last year, a multi-season cable drama about intelligence officials.) I think you could depict, one, two or three sides. In Iraq, watch the inner workings of Sunni and Shiite insurgent groups and the local government and the US military as each group struggles for power. Now that sounds intriguing…

Except The Wire wasn’t popular when HBO first aired it. And this series sounds expensive as hell, filming in a place that looks like Iraq or Afghanistan.

I guess COIN is just expensive.

Apr 01
(To read the rest of "On Violence’s Most Thought Provoking Foreign Affairs Event of 2014", please click here.) - See more at: http://www.onviolence.com/#sthash.urR2eHTL.dpuf

(To read the rest of "On Violence’s Most Thought Provoking Foreign Affairs Event of 2014", please click here.)

Today’s post continues our series about the intelligence community after the release of their black budget last fall by the Washington Post. Today’s edition debunks the critics of Edward Snowden.

Myth 9: The release of the Intelligence Community’s Budget isn't useful. Edward Snowden’s disclosures will probably provide more use as a historical document than any other intelligence document of the last 50 years. The Washington Post explains why, “Historical data on U.S. intelligence spending is largely nonexistent.”

So I ask the rhetorical question, how can you write a history of America’s intelligence community if you don’t have the documents? You can’t. As an academic and historian, this troubles me. Indeed academics--rather than journalists--can write the best, most critical research and analysis on intelligence. (Tenure is a powerful thing.) As a result, we don't have great histories of intelligence written by non-intelligence insiders. This document (plus Wikileaks) will do a tremendous job of filling the gap. It will enable historians to study intelligence without relying on insider access.

Of course, oversight is useful in and of itself. As the 9/11 Commission wrote:

“When even aggregate categorical numbers remain hidden, it is hard to judge priorities and foster accountability...”

Who doesn’t want every single member of Congress to have the knowledge of how much our country spends on intelligence? It seems vital to ensuring oversight and protecting the civil liberties of Americans. Further, this release will help small government conservatives, transparency advocates and anti-war activists marshall facts to support their opinions.

So, yeah, it is pretty useful.

Myth 10: The intelligence community isn't redundant or wasteful. Thanks to this budget, the whole country can go through and see how many agencies conduct the same activities, repeat the same functions, and analyze the same information.

When the President doesn't even know the names or purposes of the sixteen intelligence agency under his purview (read this Politico story of the details), you probably have redundancy and waste. When multiple agencies have human intelligence, satellite collection, technical intelligence and signal collection capabilities--not to mention analytical overlap--then yeah, you probably have redundancy and waste. When a government agency’s budget doubles in a ten year period without regular reviews, then you probably have redundancy and waste.

Now that we have all the numbers to quantify those redundancies, we might (small might) be able to fix it.

Myth 11: Releasing this document harms America's national security. When I first wrote this article, I asked myself, “What does that even mean?” Does “harming national security” mean “making it more likely Americans will be harmed?” In that case, it’s hard to see how releasing our national collection priorities will suddenly change the behavior of our enemies. Will al Qaeda, armed with the information that U.S. wants to hunt it down, suddenly change tactics? Will China be shocked we are spending gobs to stop its cyber attacks? Probably not and Americans won’t be harmed in either case.

Really, though, the question is irrelevant. The onus isn't on us for explaining why this isn't dangerous, but on the classifiers to explain how this specific document could hurt America's security in concrete, specific ways. Operational plans fall into that category; broad strategic plans don't. We should release this document unless the NSA can show the concrete harm which could stem from it. The benefit from having millions of Americans having more insight into how the governments spends their money far outweighs the hypothetical damage to national security.

Myth 12: The Intelligence Community doesn't have goals, metrics or a report card. For this myth, we go to myself (Michael C). Like its bigger brother the Pentagon, I just assumed the IC spent our money wildly with no eye to accomplishing concrete goals. As this budget shows, the IC does have goals, for example improving human intelligence collection, but it hasn’t done very well accomplishing them, which might explain why they stay hidden. Nevertheless, I have to give credit that at least somewhere America’s intelligence world created goals for itself.

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 erected...in 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.