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Report Finds NSA Programs Legal, but Legal Doesn't Equal Right

A board directly appointed by President Obama finds "legality" and "value" in mass government surveillance. We should not be so appeased.
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An independent report released late Tuesday is music to the ears of the NSA and defenders of a surveillance state. The Privacy and Civil Liberties Oversight Board (PCLOB) declared that a number of mass data collection programs, enabled under section 702 of the 2008 FISA Amendments act, are "legal and effective in protecting national security."

The findings, expected to be approved by the board today, sit at direct odds with a report issued by the very same body in January this year, which then found the NSA's vast data hoarding to be "lack[ing] viable legal foundation."


The five-member bipartisan board, appointed directly by the president, looked at a different set of programs for the latest report and found them to be "reasonable" and "valuable."

'The administration's ability to point to reports and say "Hey! look! It's legal!" should make us more suspicious of legality, not more assured about government activity.'

There were a few concerns and caveats expressed: The number of terrorist attacks found to be thwarted fell short of the NSA's claim of 54 and PCLOB admitted that the sweeping of Americans' communications data into dragnet programs treads the edge of constitutionality. But the big takeaway is that programs like PRISM are legal and vindicated by that reliable pretext of counterterrorism.

We have here yet another example of how, when the executive branch needs something to be legal, legal grounds can be found. As we've seen again and again in the post-911 paranoid national security state, the law is a moving marker — a justificatory film that can be wrapped around most any government activity with the imprimatur of fighting terror. When aspects of Section 702 were found to be illegal by Bush-era administration lawyers, Congress moved to make them legal.

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What gets to be legal is regularly an ex post facto response, creating a vindicating framework for what the government is doing anyway. We've seen this with the National Defense Authorization Act which served to insert into the legal record the fact that the US was indefinitely detaining prisoners already. The administration's ability to point to rulings and reports and say "Hey! look! It's legal!" should make us more suspicious of legality, not more assured about government activity.


As ACLU Deputy Legal Director Jameel Jaffer today said of the latest PCLOB findings: "This is a weak report that fails to fully grasp the civil liberties and human rights implications of permitting the government sweeping access to the communications of innocent people." The ability for a presidentially nominated board to find national security and legal defenses for government malfeasance should not surprise us. Nor should it direct our attentions to the serious problems produced through a totally surveilled society.

'It should not be the marker of ethical acceptability that a spy program can be found to be legal and useful.'

Jaffer's emphasis on civil liberties is correct here, whether or not NSA dragnets helped thwart a number of attacks. Must we exhume that old Ben Franklin line: "Any society that would give up a little liberty to gain a little security will deserve neither and lose both."

It should not be the marker of ethical acceptability that a spy program can be found to be legal and useful. I have no doubt that aspects of NSA mass surveillance are both these things. But we must be weary of half-finished thoughts here.

To what is mass surveillance useful? Perhaps thwarting some terror attempts, but also in producing a system of control wherein citizens are both obedient and docile — at a time when neither is appropriate — because they are watched. Locating the legality and national security value of a surveillance state also provokes a docility; nothing illegal here, Keep Calm, Carry On. Legal validation for NSA actions will come, peace of mind about mass surveillance should not follow suit.

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Follow Natasha Lennard on Twitter: @natashalennard

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