The “summer of NSA revelations” rolls along, with a blockbuster finale today. In June, Jennifer Granick and Christopher Sprigman flatly declared the NSA criminal. Now the agency’s own internal documents (leaked by Snowden) appear to confirm thousands of legal violations.
Legal scholars will not be surprised by the day’s revelations, just as few surveillance experts were all that shocked by the breadth and depth of PRISM, PINWALE, MARINA, and other programs. Ray Ku called warrantless surveillance unconstitutional in 2010. Civil liberties groups and legal scholars warned us repeatedly about where Bush-era executive power theories would lead. As anyone familiar with Bruce Ackerman’s work might guess, pliable attorneys have rubber-stamped the telephony metadata program with a “white paper” that “fails to confront counterarguments and address contrary caselaw” and “cites cases that [are] relatively weak authority for its position.” There are no meaningful penalties in sight (perhaps because the OLC has prepared documents that function as a “get out of jail free” card for those involved).