Sometimes I feel like its necessary to burn down a straw man, because so many people seem to be propping him up.

Fans of the mass domestic telephony metadata surveillance program operated by the NSA would have us believe three things simultaneously.

1. The program is perfectly legal.
2. The program was publicly disclosed in the pages of the USA Today in 2006, so everyone knew about it and everyone agreed that it was legal.
3. The program had to be sheltered from judicial review in order to prevent Al Qaeda from finding out about it.

As ridiculous as this narrative is, there seems to be an awful lot of people who believe it.

Lets review the actual history of what happened here.

These programs were started during the early years of the Bush Administration, in a context where a lot of other things were going on, including mass monitoring of domestic telecommunications content (at least at the 2001 Winter Olympic Games), the indefinite detention of U.S. citizens without charges (see Jose Padilla), and the elimination of the restrictions on torture.

Its not as if Congress passed the Patriot Act with the intention of authorizing a program like this. The legal rationale for the mass meta-data surveillance program, at the outset, had nothing to do with Section 215 of the Patriot Act. The legal rationale was that the President, acting under his Article II authority to defend the security of the United States, cannot be constrained the other two branches of the federal government.

Over hundreds of years our society has accumulated a number of constraints upon executive power, such as the Writ of Habeas Corpus, the Fourth Amendment, and Geneva Conventions. We accumulated these constraints because we learned the hard way that if they are not in place, people do bad things. In fact, when the Bush Administration removed these constraints, bad things happened. Those bad things were an inevitable and predictable consequence of the kind of leadership that they engaged in.

After Bush was re-relected, someone leaked word of this mass meta-data surveillance program to the USA Today, and a fight ensued between Dick Cheney, who argued that the President can do whatever he wants under Article II of the Constitution, and Arlen Specter, who tried to negotiate review of these programs by the FISA court. In the end Mr. Specter won.

This is when I did something that over the past year fans of the mass surveillance program have repeatedly ridiculed me for doing - I gave our system the benefit of the doubt.

The IC said that they couldn't submit these programs to open judicial review in order to protect sources and methods, so there had to be a secret court. I trusted that the secret court would not approve aspects o... [ Read More (0.4k in body) ]