Is N.S.A. Domestic Surveillance Criminal as well as Illegal?

Jennifer Stisa Granick, director of civil liberties at the Stanford Center for Internet and Society & Christopher Jon Sprigman, professor at the University of Virginia School of Law, The Criminal N.S.A. (Op-Ed), NYTimes (June 28, 2013):

... 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.

...

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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So you have nothing to hide?

So you wouldn't mind if the local housing inspector listened to all of your telephone calls and read all of your email? So you wouldn't mind if the local health inspector listened to all of your telephone calls and read all of your email? So you wouldn't mind if the local tax assessor listened to all of your telephone calls and read all of your email? So you wouldn't mind if the Internal Revenue Service listened to all of your telephone calls and read all of your email? So you wouldn't mind if Senator Charles Schumer had access to all of your telephone calls and all of your email? So you wouldn't mind if Governor Andrew Cuomo had access to all of your telephone calls and all of your email? So you wouldn't mind if Senator Ted Cruz or Frank Ryan or John McCain had access to all of your telephone calls and all of your email? So you wouldn't mind if your friendly local police officer listened to all of your telephone calls and read all of your email? So you wouldn't mind if your child's school teacher could listen to all of your telephone calls and read all of your email? So you wouldn't mind if your children could listen to all of your telephone calls and read all of your email? So you wouldn't mind if your employer had access to all of your telephone calls and read all of your email? (Caution: This may already be happening to a large extent.) So you wouldn't mind if President Nixon's men had access to all of your telephone calls and all of your mail? So you wouldn't mind if your life were an open book and anyone who might wish to do you harm (or who might merely be inclined to do so) were able to listen to all of your telephone calls and read all of your email? &&& The dynamic evidence page

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NSA Collects Billions of Communications Every Day

Glenn Greenwald, Fisa court oversight: a look inside a secret and empty process, Obama and other NSA defenders insist there are robust limitations on surveillance but the documents show otherwise guardian.co.uk, Tuesday 18 June 2013 19.36 EDT:

What is vital to recognize is that the NSA is collecting and storing staggering sums of communications every day. Back in 2010, the Washington Post reported that "every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications." Documents published by the Guardian last week detail that, in March 2013, the NSA collected three billions of pieces of intelligence just from US communications networks alone.

In sum, the NSA is vacuuming up enormous amounts of communications involving ordinary Americans and people around the world who are guilty of nothing. There are some legal constraints governing their power to examine the content of those communications, but there are no technical limits on the ability either of the agency or its analysts to do so. The fact that there is so little external oversight is what makes this sweeping, suspicion-less surveillance system so dangerous. It's also what makes the assurances from government officials and their media allies so dubious.

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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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American War Policy in 2013 & Shortly Thereafter

This is a perceptive essay about why America should have a less active (a/k/a less belligerent) foreign military policy, but it is odd that Haass makes no mention of the moral considerations for reduced resort to wars and foreign military operations:

Richard N. Haass, America Can Take a Breather. And It Should. (Op-Ed.) NYTimes (June 22, 2013)

A snippet:

The United States is currently enjoying an unprecedented respite in the foreign policy arena — a temporary relief from the normal rigors of history that allows us to take stock at home and abroad.

It may seem outlandish to claim that we’re in the midst of a lull, given that America faces a civil war in Syria, an Iran that seems to be seeking nuclear weapons, an irresponsible North Korea that already possesses them, continuing threats from terrorists, a rising China and rapid climate change.

Yet the United States enjoys a respite all the same. For the three and a half centuries of the modern international era, great powers have almost always confronted rivals determined to defeat them and replace the global order they worked to bring about. In the last century, this process unfolded three times. The results were violent, costly and dangerous, and included two world wars and a cold war.

Today, there are threats, but they tend to be regional, years away or limited in scale. None rises to the level of being global, immediate and existential. The United States faces no great-power rival. And this is likely to remain so for the foreseeable future.

The biggest strategic question facing America is how to extend this respite rather than squander it. This will require restraining foreign involvement and restoring domestic strength. We can no longer seek to remake countries in the Middle East and South Asia, as was tried at great cost and with little success in Iraq and Afghanistan.

Instead, we must revive the American economy, something that will not only improve the living standards of our citizens but also generate the resources to discourage would-be competitors from choosing the path of confrontation and to deal with them if they opt for confrontation all the same.

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