Legality and Willingness to Accept NSA Spying

The reason that I am spending so much time and effort on the NSA wiretaps and phonecall database is because I consider the underlying issue of government power to be one of the most serious issues we face. I have explained some of the reasons in the last three days of posts. There are a few others that I would like to consider.

The Legality Claim

"The NSA's activities are perfectly legal."

The Bush Administration is attempting to defend itself by claiming that the activities of the NSA are legal.

This argument suffers from a number of flaws.

First, we are getting this from an administration that thinks that everything the President does in the name of national security is legal. It does not even matter if the activity really has anything to do with national security. As long as the President uses the words 'national security' while performing the act, then it is legal.

If President Bush were to ask Attorney General Gonzales for a defense of a "final solution" to the "fundamentalist Muslim" problem by exterminating all Muslims in concentration camps, I suspect that Gonzales would be willing and able to comply. Can we fit the program under the heading 'national security'? Yes we can. Therefore, Gonzales would likely claim, it falls under the President's legitimate authority as commander of chief of the Armed Forces in time of war, that he may order the "final solution" if he wishes.

For people who think like this to come to us and say that it thinks these activities are legal is a rather poor joke. Of course they think it's legal. They think EVERYTHING is legal.

Second, even if something is legal, it can still be wrong. Hitler's 'final solution' was legal. Slavery was legal. The Crusades and the Inquisitions of the Middle Ages were legal. Stalin's purges were legal. One cannot stand up in front of a crowd and say, 'this was legal' and expect that to be the end of the matter.

'Legal' does not mean 'right.' This blog is concerned with what is right, and claims about what is irrelevant and subsidiary to what is right.

The Public Will

"In the days after 9-11, the people would have allowed the Bush Administration to do anything to fend of another attack."

This is probably true. For a few months after 9-11, President Bush could have probably given a speech in which he abolished the Constitution, suspended all further elections, and took total control of the government. Indeed, I am curious to know if anybody could name a time, since 1900, that somebody took dictatorial control of a country without basing his actions on 'national security' against some enemy, real or imagined.

I am not saying that the Bush Administration made up 9-11, or that they allowed it to happen because they knew that they could use it. On the other hand, I think it is quite reasonable to assume that within minutes -- if not seconds -- after learning of the attack, there were people high up in the Bush Administration who were saying things like, 'We can use this.'

It is depressing to see how quickly and completely Americans descended into this type of thinking. I had hoped that the American love of freedom was strong enough to resist these types of claims. Yet, Americans gave no sign that they would resist tyranny that wrapped itself in a cloak of national security.

Bush's defenders are now claiming that Bush suffered from poor timing, not poor policy. He should have asked for these powers when the people would have been more inclined to give them. This is like saying that Hitler should have proposed his Final Solution to the Jewish problem when he was at the height of his popularity and the people would have been less inclined to resist.

These types of claims miss the moral issue entirely. Indeed, they ignore the moral issue, and pretend that the only relevant question is what serves the interests of those with power. The question of right and wrong -- the morally legitimate use of power -- is shoved aside.

Conclusion

Neither of these arguments have anything to do with the moral legitimacy of the types of actions that the Bush Administration are pursuing. In order to avoid criminal prosecution, it may be useful to argue that one’s actions are legal. However, a full defense of one’s actions requires showing that a legal action was also right. Not every wrong action is illegal. If the wrong people get the power to make the laws, a great many wrong actions can be made legal.

The second option carries the practical implication that if the people can be frightened to the point that they embrace tyranny, than tyranny is morally permissible. It may well be a psychological and sociological fact that the best time to establish a dictatorship is shortly after the country has suffered an attack. Yet, it is absurd to argue, “The people would have accepted such a law shortly after 9-11; therefore, there would have been no moral crime in pursuing such a law shortly after 9-11.”

Shortly after the attack on Pearl Harbor, Americans were willing to accept the internment of thousands of American citizens without charges or trials based on the fact that they were of Japanese ancestry. This should adequately demonstrate how the willingless to accept a certain law is no argument for its moral legitimacy.