May 062014

I’m going to reiterate one of the major reasons why I oppose the government’s bulk suspicionless domestic surveillance programs revealed by Edward Snowden and others. I’m talking about something different but inseparable from important issues of constitutionality, statutory legality, effectiveness, and intrusiveness that are debated almost ad nauseam among lawyers, journalists, politicians, and nat sec personnel.

I’m talking about context. The context of the erosion of the rule of law.

It matters to me that this surveillance has been initiated and concealed in the context of a so-called “war on terror” that has already precipitated many other reprehensible government behaviors that even many defenders of the NSA’s programs are reluctant to defend.

When I consider these other government actions, such as the Iraq war and the manipulative public relations campaign (lies) waged by the executive branch in preparation for that war, and when I consider the regimes of indefinite detention and assassination-by-drone embraced by both the Bush and Obama administrations and subjected to essentially zero public oversight, I am much less likely to believe that the government will not abuse these surveillance powers that it now claims are so necessary to protect us from terrorists.

If the overall context of these domestic surveillance revelations was one in which the rule of law was held in high esteem and scrupulously observed, things might be different. But instead, consider the context in which we actually find ourselves: apart from specific instances of flagrant disregard for the rule of law (see e.g. the disgraces at Abu Ghraib and the lawyerly cover-up that featured Jay Bybee’s torture memos, the legal embarrassments perpetuated by John Yoo, and the immediate rejection by the newly-elected Obama administration of any suggestion that anyone who played fast-and-loose with the law under the G.W. Bush administration should be made to answer for themselves, let alone pay any actual penalties), we are told that since we are “at war” that that the rules are different.

Specifically, that since Congress passed the AUMF, we are told that the executive branch is now operating not under a peacetime legal regime, but under some vague “wartime” regime that grants it much more leeway, but that remains ill-defined and which continues to rely almost continuously on post-hoc legal justifications and concealment of its actions from the public. We are not told why Barack Obama authorizes drone strikes that routinely kill people in Pakistan. Never mind that we have not declared war on Pakistan (or on Yemen, where we also repeatedly assassinate people with drones). Never mind that the identity of the killed is often kept secret (they were “militants”) in the face of routine allegations by third parties that many of the people killed were civilians. Forget about Abdulrahman Al-Awlaki. Forget about the detainees in Guantanamo and about the likely fact that they’ve been tortured and the known fact that they’re being held indefinitely. Focus instead on this pseudo-wartime legal regime that we all seem to take for granted.

When will we know when it ends? When will “terror” be defeated? When will be able to return to the peacetime, constitutionally-governed legal regime that would presumably require far more transparency and inter-branch checks on executive power than what we’ve seen since the AUMF? Answer: we don’t have a fucking clue.

And that’s why I don’t have faith or trust in the NSA, the FBI, or the government in general that it won’t abuse the historically unprecedented regime of bulk suspicionless surveillance that we are asked to accept in the name of this vague “war” on terror.

Faith and trust, I admit, are idiosyncratic emotions, and the defenders of the NSA can choose for themselves to trust, to believe, and to hope for a better future through unleashing the benevolent powers of people like John Brennan and the rest of the Obama administrations nat sec apparatus.

But that seems a bit too credulous for me. I like the rule of law and I want it back.

If you like the current surveillance regime and want to keep it, repeal the AUMF and disclaim any pretentions to some vague “wartime” legal regime. If you like the AUMF and think we’re still at “war”, then don’t try to defend secret blanket surveillance by arguing that it’s all legal under statutes and the Constitution — why would you need to? It’s war, bud, and the only real crime in war is to lose.

Postscript: I would appreciate not distracting ourselves with debates about the character or motivations of Glenn Greenwald or Edward Snowden — irrelevant! We’ll stipulate if you wish that both are smelly turds! Now let’s focus on the questions at hand and move on!

And let’s focus for a few moments on the rule of law in this country, not on Vladimir Putin or on what happens in Russia — irrelevant! Putin is a he-man dictator who is 1000 times more masculine than Obama! So stipulated! Move on!