Why Your Opinion on NSA Snooping Is Irrelevant

Much of the discussion about the recent revelations of the NSA's massive snooping capabilities has centered around whether or not people think it's a problem.  There are plenty of opinions, from "The government are fascists trying to kill us", to "I don't care if the government reads my stupid emails", to "It keeps us safe".  The ever-popular "You have nothing to fear if you have nothing to hide" always gets discussed, whether this opinion is being advocated or debunked.  But all of these opinions, including yours and mine, are completely irrelevant to what's going on here.

The emphasis on opinions and polling data is powered by a persistent, pervasive and false belief that the United States is and should be a democracy.  In a democracy, every citizen gets to vote on every issue, and the majority rules.  This is not the form of government we have, and it's not the form of government you want.  Other names for majority rule are "mob rule" and "tyranny of the majority".  If majority opinion ruled, women and black people would still be property, and the country would be a Christian police state where homosexuals and atheists were publicly executed.  Is that what you want?  Thankfully, the United States is a representative republic, where the rights of minorities are explicitly protected in the Constitution.  The contrast between democracy and republic is being played out on many issues, most notably gay marriage.  A host of ill-conceived popular votes on gay marriage have elevated the public's bigotry to the status of law, but this will not last.  Legislatures and the courts are slowly but surely seeing that this is a civil rights issue, a matter of equal protection.  The will of the public is going to be overruled by the constitutional government, and this is as it should be.

There are also a lot of people talking about whether the spying programs are legal or not, and there is a lot of misconception about what this means.  The most common misconception is that whenever a piece of legislation is passed by Congress and signed by the president, it becomes legitimate law from there on after unless repealed.  While it's true a signed bill becomes a law, it's really a kind of temporary, provisional law, unless and until it becomes settled law by being tested and upheld in court.  The fact is, much of what has passed through Congress in recent decades is blatantly unconstitutional.  Take, for instance, the NDAA, which authorizes indefinite detention of American citizens without trial.  How can you square this with the Sixth Amendment, which guarantees the right to a speedy public trial?  It's absurd on its face, yet it is, for the moment, law.  People do not seem to understand that the legislature is not obligated to pass laws that agree with the constitution.  They should, but they don't.  And the Supreme Court doesn't have any sort of veto power over legislation.  Ultimately they can strike down legislation, but only after someone brings  a legal case against the government, against the law itself.  This can take years to work its way up to the Supreme Court which can finally overturn the unconstitutional actions of the legislature and executive branch.  We are in that waiting stage for many fundamentally illegitimate laws like the NDAA, which has a major lawsuit against it, currently in the appeal process.

To understand what's so significant about the NSA spying case, you need to appreciate how this lengthy process of interplay between the three branches of government results in settled law, which is the only type of law that has any moral authority.  The key point to realize is that the Bush and Obama administrations have been deliberately and aggressively blocking the process of settling law which ought to involve all three branches of government.  The Washington establishment is pretending that there is oversight and checks and balances because a corrupt warmonger like Sen. Dianne Feinstein says she approved what the executive branch is doing.  But the founders of this country made three branches of  government for a reason.  The judicial branch has been failing very consistently, because they are being swayed by an executive branch which is manipulating the system to prevent the courts from doing their job.  The Obama DOJ is not simply arguing that laws like the NDAA or the NSA's surveillance are constitutional and letting the courts decide.  They are trying to block the cases from being heard, typically by using secrecy claims to prevent the cases from moving forward.  They believe they must do what they're doing in order to protect the country, but they are willing to destroy the country in the process.

These complex, and perhaps boring questions of law are what really matters here, not your opinion of whether or not the NSA's snooping is intrusive or not.  Nor does anybody's security concerns matter here.  Because if we give up our constitutional government, for any reason, we're doomed.  Thousands of years of human history have conclusively demonstrated that unchecked power is inevitably abused.  That's precisely why the founders of the United States set up such an elaborately balanced system of government.  And either we are a nation of laws, or we are a nation of bullies.

Right now, the bullies are in charge.  Whistleblowers who expose wrongdoing are prosecuted, but powerful Washington insiders who lie to Congress are given a pass.  This needs to change if we this country is going to survive in its current form.  If you value the freedom you have left, if you think the United States is a good country worth saving, then you must make your only consideration whether or not the laws are being upheld.  And as defined in our constitution, the making and settling of laws requires all three branches of government.  That's the key result of these recent leaks, exposing what the legislative and executive branches are doing in trying to shut out the judicial branch.  Only if we insist that all of our security laws pass muster in the courts can we preserve our country and our way of life.