Let's Be Clear, say Legal Experts, NSA Surveillance Dragnets Are 'Criminal'

Despite a vast selection of elected US officials from both parties and an outsized portion of the US media who have accepted the assurances from the Obama administration and the National Security Agency that the domestic spying programs revealed by whistleblower Edward Snowden are someone "legal" under US statute, two legal scholars penned a sharply worded New York Timesop-ed on Friday demanding better attention must be paid to the reality of what the disclosures truly show and that the programs be described as what they are: "criminal."

Jennifer Stisa Granick, director of civil liberties at the Stanford Center for Internet and Society, and law professor Christopher Jon Sprigman from the University of Virginia contend in their article, The Criminal NSA, that those supportive of government claims are simply "wrong" and that what we know about the programs is that they betray both "the letter and the spirit of federal law" designed to protect US citizens from government snooping of their private communications.

"No statute explicitly authorizes mass surveillance," they write.

"Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House -- and from President Obama, who has seemingly forgotten the constitutional law he once taught."

Looking specifically at the two most damning revelations reported on by the Guardian newspaper so far--the vast collection of cell phone "metadata" from nearly all US citizens and the Prism program, which allows for vast collection of internet communication data from some of the online platforms most used by Americans--the two legal experts say that in both cases the NSA has employed "shockingly flimsy" legal arguments to defend their practices.

"It's time to call the N.S.A.'s mass surveillance programs what they are: criminal."

Discussing the collection of telephone communications, they explain:

The law under which the government collected this data, Section 215 of the Patriot Act, allows the F.B.I. to obtain court orders demanding that a person or company produce "tangible things," upon showing reasonable grounds that the things sought are "relevant" to an authorized foreign intelligence investigation. The F.B.I. does not need to demonstrate probable cause that a crime has been committed, or any connection to terrorism.

Even in the fearful time when the Patriot Act was enacted, in October 2001, lawmakers never contemplated that Section 215 would be used for phone metadata, or for mass surveillance of any sort. Representative F. James Sensenbrenner Jr., a Wisconsin Republican and one of the architects of the Patriot Act, and a man not known as a civil libertarian, has said that "Congress intended to allow the intelligence communities to access targeted information for specific investigations." The N.S.A.'s demand for information about every American's phone calls isn't "targeted" at all -- it's a dragnet. "How can every call that every American makes or receives be relevant to a specific investigation?" Mr. Sensenbrenner has asked. The answer is simple: It's not.

And regarding the Prism program, which the NSA has claimed authority to operate under the FISA Amendments Act of 2008, Granick and Sprigman say the NSA has reached out far beyond the already broad authority granted it.

The government knows that it regularly obtains Americans' protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target's "foreignness" -- as John Oliver of "The Daily Show" put it, "a coin flip plus 1 percent." By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

How could vacuuming up Americans' communications conform with this legal limitation?

The answer again, they write: It doesn't. Though defended by National Security Director James Clapper, the experts quip that "if there's a law against torturing the English language," it's Clapper who should be in "real trouble."

And what's worse, writesThe Nation's Jonathan Schell, is that what Americans until recently assumed unthinkable has now become commonplace:

The first thing to note about these data is that a mere generation ago, they did not exist. They are a new power in our midst, flowing from new technology, waiting to be picked up; and power, as always, creates temptation, especially for the already powerful. Our cellphones track our whereabouts. Our communications pass through centralized servers and are saved and kept for a potential eternity in storage banks, from which they can be recovered and examined. Our purchases and contacts and illnesses and entertainments are tracked and agglomerated. If we are arrested, even our DNA can be taken and stored by the state. Today, alongside each one of us, there exists a second, electronic self, created in part by us, in part by others. This other self has become de facto public property, owned chiefly by immense data-crunching corporations, which use it for commercial purposes. Now government is reaching its hand into those corporations for its own purposes, creating a brand-new domain of the state-corporate complex.

Surveillance of people on this scale turns basic liberties--above all the Fourth Amendment, which protects citizens against unreasonable search and seizure--into a dead letter. Government officials, it is true, assure us that they will never pull the edges of the net tight. They tell us that although they could know everything about us, they won't decide to. They'll let the information sit unexamined in the electronic vaults. But history, whether of our country or others, teaches that only a fool would place faith in such assurances. What one president refrains from doing the next will do; what is left undone in peacetime is done when a crisis comes.

And Granick and Sprigman express how the US government has made a "mockery" of both the Fourth Amendment of the Constitution and Supreme Court rulings designed to protect US privacy.

"The Fourth Amendment obliges the government to demonstrate probable cause before conducting invasive surveillance," they explain. However, the continue, "There is simply no precedent under the Constitution for the government's seizing such vast amounts of revealing data on innocent Americans' communications."

And conclude:

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government's professed concern with protecting Americans' privacy. It's time to call the N.S.A.'s mass surveillance programs what they are: criminal.

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