In an article titled “The Lies Aren’t What Makes Obama’s NSA Stance So Awful,” TNR‘s Jeffrey Rosen takes apart the legal justification for the NSA’s surveillance and data collection programs. (Orin discussed the relevant memos here.)
The Obama administration’s 22-page White Paper setting out the supposed legal basis for NSA surveillance demonstrates that the Obama administration . . . is not relying on legal defenses that are too clever. Rather it’s relying on defenses that are too flimsy and weak. Many of these are warmed over versions of arguments that principled judges and officials rejected during the Bush administration, and that the Supreme Court is now being asked to reject once and for all.
The White Paper, released August 9, is surprisingly mostly in the lameness of its effort to justify what it calls “Bulk Collection of Telephony Metadata under Section 215 of the Patriot Act.” The core of the argument is an attempt to redefine the meaning of the word “relevance” beyond recognizing, just as the administration’s earlier, and equally flimsy, drone memos attempted to redefine the meaning of the word “imminence” in the context of responding to an imminent threat.
Until the administration issues the legal memos justifying its latest contortions of Foreign Intelligence Surveillance law, it’s impossible to make a firm judgment about just how elastic the arguments are. But as the belated release of the drone and Section 215 memos show, once the administration’s legal arguments are exposed to light, they are underwhelming and unconvincing. In other words, it’s not the secret nature of the programs that requires the president to tie himself in knots by giving the “least untruthful answer.” It’s the flimsiness of the legal arguments on which he is relying to justify his actions.