The Difference Between 'Legal' and 'Illegal'

by Glenn Greenwald

In 2006, when the British police -- using (among other things) electronic surveillance conducted by both the U.S. and British Governments -- thwarted a Terrorist plot to blow up transcontinental airplanes over the Atlantic Ocean, right-wing polemicists everywhere claimed that this was vindication for the Bush/Cheney warrantless eavesdropping program.  But there was one rather enormous problem with that claim:  namely, the surveillance in question was entirely legal, conducted by obtaining warrants under the supervision of the FISA court where required by law.  The disruption of that Terrorist plot thus proved exactly the opposite of what was widely claimed:  namely, the extremely broad parameters of FISA easily allowed surveillance of dangerous Terrorists, and there was therefore no need to break the law as Bush officials did.  But because the distinction between "legal" and "illegal" is no longer recognized when it comes to government acts, that fact eluded virtually all discussions of the British airplane plot.  To prove that "legal surveillance is good" was to prove that "Bush's illegal eavesdropping was justified."

Yesterday, the three individuals who spearheaded that Terrorist plot were convicted in a British court.  The New York Times' Robert Mackey wrote about these convictions today and noted that a major piece of evidence used in the trial was email messages intercepted by the National Security Agency.  Mackey ends his commentary with this question -- one he obviously thinks is both piercing and provocative:

Given the continuing controversy in the United States over N.S.A. surveillance when it involves U.S. citizens, do readers who oppose letting the authorities read the private e-mail correspondence of Americans feel any differently about the issue knowing that the agency's monitoring of these foreign nationals may have helped disrupt a major plot in this case?

This reflects the core ignorance -- the central deceit -- that has driven national security discussions in the U.S. since 9/11, at least.  Contrary to Mackey's assumption, there is no controversy over whether the NSA should be able to engage in surveillance of telephone conversations and emails.  There is virtually nobody who believes that the NSA should be barred from intercepting the emails or eavesdropping on the telephone conversations of actual Terrorist suspects.  The category of people to whom Mackey purports to address his question -- those who "oppose letting the authorities read the private e-mail correspondence of Americans" -- does not exist in any meaningful number, and it never has.  To frame the issue this way is to reveal a radical ignorance of the issues -- almost four years after his newspaper first revealed the illegal eavesdropping program.

The surveillance controversy is not and never has been over whether the Government should be able to intercept the communications of Terrorist suspects.  The law (FISA) has always allowed such interception since its inception and virtually nobody opposes that.  Nor was there controversy about whether the NSA could intercept foreign-to-foreign communications, as they did here.  The controversy was and is whether they should be able to engage in surveillance of American citizens in violation of the law -- i.e., without judicial oversight and/or beyond the parameters the law allows.  The 2009 NYT article to which Mackey links (to reference "the continuing controversy") has nothing to do with opposition to interception of the emails of Terrorist suspects.  Virtually nobody opposes that.  It has to do with interceptions of emails of American citizens where the interceptions are illegal.  Why are so many people incapable of comprehending the difference between "legal surveillance" and "illegal surveillance"?  Are those concepts really that difficult?  Here is the "continuing controversy" as the article to which Mackey links described it:

Since April, when it was disclosed that the intercepts of some private communications of Americans went beyond legal limits in late 2008 and early 2009, several Congressional committees have been investigating. Those inquiries have led to concerns in Congress about the agency's ability to collect and read domestic e-mail messages of Americans on a widespread basis, officials said. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans' e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation. . . .

The N.S.A. is believed to have gone beyond legal boundaries designed to protect Americans in about 8 to 10 separate court orders issued by the Foreign Intelligence Surveillance Court, according to three intelligence officials who spoke anonymously because disclosing such information is illegal. Because each court order could single out hundreds or even thousands of phone numbers or e-mail addresses, the number of individual communications that were improperly collected could number in the millions, officials said.

Why would the beneficial fruits of legal surveillance with warrants lead people who object to illegal, warrantless eavesdropping to "feel any differently about the issue"?   Mackey obviously can't process the distinction between "legal surveillance" and "illegal surveillance," which is why he thinks people who oppose the latter also oppose the former.  And why would successful legal eavesdropping on foreign, out-of-the-country Terrorist suspects (about whom there was probable cause to believe they were engaged in Terrorism) lead people who object to eavesdropping on innocent American citizens to change their minds about anything?

This is the most pervasive and perverse assumption permeating national security discussions:  that we cannot Stay Safe and simultaneously have a government that abides by the law [in his McCarthyite screed recently accusing me of "indifference" to American national security, Joe Klein wrote that I have never "ma[d]e a single positive suggestion about how to confront that [terrrorist] threat in ways that might conform to [my] views" -- as always, it's simply assumed that the "suggestion" I've been making for four years (that the Government should follow the law when eavesdropping on, interrogating and detaining Terrorists) is simply not a means for Staying Safe].  That's the assumption that emerges time and again in virtually every national security controversy.  If one really thinks about it, it's a truly magnificent achievement for the Government to have convinced its citizenry that they must be allowed to break the law if the citizens want to survive.

So here -- with this British Terrorist conviction -- we have the perfect template for how Terrorism can be effectively combated within the rule of law.  Authorities learned of the plot through legal investigations involving warrants and FISA court supervision.  The Terrorist suspects were not disappeared to a secret prison, nor held without charges, nor did they have confessions tortured out of them, and were not given some sham military commission; instead, they were charged with a crime, given a trial in a real court with due process, convicted by a citizen jury and then sentenced to long prison terms.  It was all effectuated in accordance with legal means and basic precepts of justice -- exactly how Terrorism should be handled.

Yet we have a New York Times commentator pointing to this episode and demanding of those who object to illegal surveillance whether all of this has changed their minds.  Why would it?  The reverse is true:  it should change the minds of those who have been claiming for years that the only way to Stay Safe is to vest the Government with radical detention powers and to allow the Government to break the law in how they spy on us.  That's so obvious that it's hard to believe it even needs to be pointed out, but the campaign to depict opposition to illegal surveillance as opposition to all surveillance has obviously succeeded so well that even (especially) people who write about these issues for a living at The New York Times can't comprehend the difference (see here for this episode where David Frum literally could not process that difference either).  That's how emedded in our political culture is the right of government officials to break the law:  "government lawbreaking" is not even recognized as a concept that makes sense.

UPDATE:  Credit to Mackey, as he has now removed that paragraph, noting in an update that "the controversy in the United States over the N.S.A. surveillance program is limited to the screening of communications by U.S. citizens without a warrant."  He should replace the deleted question with one directed towards those who have long insisted that we cannot Stay Safe with court-supervised eavesdropping and/or those who claim we cannot try dangerous Terrorists in a real court:  has this episode caused such people "to feel any differently"?

UPDATE II:  Illustrating how the Internet/blog model has improved -- and can continue to improve -- establishment journalism, it was the NYT's own commenters who, reading what Mackey wrote with a critical eye, jumped all over his misstatements in his comment section and caused him, first, to re-write the question he posed and then, when that satisfied nobody, to delete it entirely.  Mackey then appeared in my comment section to address what I wrote (here).  Numerous commenters here wrote worthwhile responses to him, and my reply to him is here.

We're a long way away from the days when journalists like Mackey could speak to their readers in a one-way monologue, and never hear any criticisms other than some stray Letters to the Editor that would trickle in days later and have little effect on anything.