The Divine Right of the NSA

Even if the Court were to conclude that Plaintiffs have presented sufficient admissible evidence of facts, which, if true, would demonstrate that Upstream collection involves a Fourth Amendment seizure or search of Plaintiffs’ communications, and that the minimal intrusion upon Plaintiffs’ possessory and privacy interests is not far outweighed by Upstream collection’s promotion of the Government’s compelling interest in national security, then the Government, in the alternative, would still be entitled to summary judgment on Plaintiffs’ Fourth Amendment claims. That is so, because adjudication of those claims and the Government’s defenses thereto would require disclosure of national-security information subject to the DNI’s assertion of the state secrets privilege.

So said the government (ours) Monday in Jewel v. N.S.A. a case in which . . . . Aw, hell.  Here's part of the case summary from the US Court website.

This case involves claims by numerous citizens that their constitutional rights were violated by the United States government through unauthorized surveillance of their telephone and internet activity by the National Security Agency (NSA) and other government actors under the "Terrorist Surveillance Program" or TSP. They allege that this was done in concert with major telecommunications companies and outside of the procedures of the Foreign Intelligence Surveillance Act (FISA) and without authorization by the Foreign Intelligence Surveillance Court (FISC). 

So let's pare it down to its basics.

Jewel and the rest of the plaintiffs say that a government agency is violating the Constitution.  To which the government responds,

Maybe.
But if we are, it's for national security.
Or so we say.
Which means that the courts have to let us do it.

It's something called the "State Secret's Doctrine" which means, basically, that if the government says

We gotta do it.

The courts say

OK, then.

It would be wrong to call that hubris.   It pretends, after all, to be the Rule of Law.  

It's not.  Not even close.

But it's a very clear statement of the Law of Rule.