Monday, June 24, 2013

Edward Snowden

I would not have done what Edward Snowden did. But I find it odd that almost all of our political leaders – Dianne Feinstein, Charles Schumer, Lindsey Graham, etc., etc. – condemn Edward Snowden without even considering the question of whether the government surveillance he revealed is legal or illegal. I wonder: Would they condemn him if they believed the government surveillance he revealed violates the Fourth Amendment?
Another point: Why do so many apparently intelligent people take the position that if the Executive Branch and Congress (or some part of Congress) "approve" of government surveillance (often by inaction, it is supposed), that such approval legitimates otherwise unconstitutional surveillance? Have they forgotten that it is black-letter law that ordinarily neither executive nor congressional approval transforms unconstitutional government action - state action that violates a Bill of Rights guarantee - into constitutional government action? The default rule is that neither the Executive Branch, nor Congress, nor the Executive Branch and Congress acting together, have the authority to approve government action that violates the Fourth Amendment.

Expedient legal thinking rules in the halls of our government.

Postscript: it is hard to say – it is impossible to say – whether there has been judicial review of the constitutionality of this or that type of covert surveillance by the NSA. That's because the opinions of the FISA court are secret!

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