The Surveillance State’s Legalism Isn’t About Morals, It’s About Manipulating the Rules

http://justsecurity.org/17393/ics-legalism-morals-manipulating-rules/#more-17393

The Surveillance State’s Legalism Isn’t About Morals, It’s About Manipulating the Rules

Margo Schlanger has written a great article forthcoming in the Harvard National Security Journal about intelligence legalism, an ethical framework she sees underlying NSA surveillance. Margo makes the case that NSA and the executive branch haven’t been asking what the right surveillance practices should be, but rather what surveillance practices are allowed to be. She takes the concept of legalism from political theorist Judith Shklar: “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” In the model of legalism that Margo sees the NSA following, any spying that is not legally prohibited is also right and good because ethics is synonymous with following the rules. Her critique of “intelligence legalism” is that the rules are the bare minimum, and merely following the rules doesn’t take civil liberties concerns seriously enough.