Legal, but not constitutional: how the government is weasel wording the public about Edward Snowden and the NSA
The Edward Snowden/NSA/PRISM uproar continues, and in the argument over whether or not he’s a Real American Patriot or your basic criminal vigilante the whole fucking point is getting lost. In fact, that argument is precisely the one that the Obama administration and the GOP’s security-state architects want us waging because it distracts us from the actual issue we need to be discussing.
You may have noticed, in reading the various statements from government officials, the recurrence of a theme: the program that Snowden exposed is legal. Keep track of how many times you hear that word. It’s. All. LEGAL.
Yes it is. And the effectiveness of the government’s rhetoric right now is unfortunately due, in part, to the language employed by the left over the past decade, which has lambasted the Bush administration’s illegal domestic spying program. Illegal. Legal. Therein lies the problem. (I have to admit that I have been culpable in this – somehow I didn’t quite grok how that framing was inadvertently legitimizing the Patriot Act and FISA.)
The problem isn’t legality, it’s constitutionality, and there’s a huge difference. The programs that Snowden dropped the dime on are legal because they’re defined by laws passed by Congress. Period. If Congress passes a law, it is by definition legal until such time as it is either overturned by either the Supreme Court or subsequent legislative action. It sounds, from what I can gather, like the NSA program is functioning as designed (it’s hard to be certain since everything about it classified, but let’s play along for the moment). The law passed both houses of Congress, was signed into law by the president, is administered by a court and has not been turfed by SCotUS. Done and done.
The thing is, the process I just described means that if Congress passed legislation explicitly banning free speech, or establishing Catholicism as the official state religion, or banning blacks and women from voting, or granting police the right to enter your home anytime they like without a warrant, or eliminating habeas corpus, and if the president signed the law, and if the Supreme Court found nothing wrong with it, then that law would be legal in the same way that current domestic surveillance programs are legal.
So when an Obama mouthpiece or a Capitol Hill Republican screeches that the program is legal, understand that for what it is. A law can be immoral, unconstitutional, racist, sexist and oppressive in a hundred different ways while being perfectly legal.
And when you get the corrupt leaders of two parties in agreement over the need for and value of a security state, and they’re able to install five or more like-minded individuals on the nation’s highest court, they have assumed the ability to ignore the Constitution whenever they feel like it.
The NSA spying program is legal, but it is unconstitutional. I suppose you could, in the spirit of tedious technical accuracy, say that it’s constitutional if the Supreme Court says it is. But Edward Snowden, like a lot of us, believes that the Bill of Rights means what it says. A lot of people believe that when a government uses its legislative and judicial apparatus to pretend that words don’t mean what they clearly say that it has forfeited its legitimacy.
How many people believe this and what are they prepared to do about it? This is the tipping point upon which we are balanced, and only time will tell whether the citizenry will demand that its government stop hiding behind a corruption of the word legal and begin behaving in accordance with the principles unambiguously codified in the Constitution.
In the meantime, whenever you hear the words “legal” and “illegal” being used to damn Edward Snowden, understand: you are being manipulated and lied to.