The Difference Between 'Legal' and 'Illegal'

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 warrantsunder 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?

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 controversyover
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.

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.

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.

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.

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