The National Security Agency was finally challenged in a civilian court and the results are in: Unwarranted surveillance and mass storage of telephone metadata, is, incredibly, in violation of our Fourth Amendment right against unreasonable search and seizure.
Well, no, that’s not entirely true. The Second Circuit Court of Appeals didn’t even bother with the Constitutional argument, ruling in 97 pages that the NSA was in violation of even the section of the PATRIOT Act it claimed authorization under — a provision which is set to expire in June barring an extension from Congress, which is increasingly unlikely in today’s political climate.
Does this represent a great victory for privacy? Probably not. The NSA was collecting information about nearly every single phone call in the United States, and a large portion of phone calls abroad, without warrants, and without really any kind of reason except, “Well, they might be phoning terrorists or something.”
This is like a federal court finally finding murder to be in violation of laws against homicide, or that a traitor acted in an unconstitutional manner. It’s not a huge stretch to come to these conclusions, and was obvious to everyone except presidents Bush and Obama.
The government pulls stuff like this all the time, of course. Procedure tells us that Congress must declare war before the President mobilizes the U.S. military to topple foreign governments, which has not happened since WWII. Procedure tells us that foreign action should at least be approved by the President, though the CIA can apparently send exploding cigars to Castro on a regular basis (in history’s most hilarious and least successful assassination attempt). Procedure also tells us that the Senatorial filibuster is a legitimate way to govern; so what good is it? No one follows procedure if there are no consequences.
We have a strong tradition of civilian control of the military in the United States. The President authorizes deployments of military forces, and the military acts within the boundaries set up or else people get court-martialed, or at least fired. (Most famously, General of the Army Douglas MacArthur after his botched and unauthorized invasion of China in the Korean War, who was relieved of his post despite massive public support.)
Our intelligence agencies have no such tradition, and are acting almost autonomously, and in violation of basic Constitutional rights. As a world power, it is understandable that the government wishes to keep certain things secret from the general public. It is, however, completely unreasonable for intelligence agencies, with farcical Congressional authority, to overstep their boundaries and violate basic Constitutional rights.
A civilian court has declared the NSA’s activities to be totally illegal, but who will go to prison? At best the NSA will have to destroy its ill-gotten records, but the American people will not be compensated for this injustice.