Via Salon, Chase Madar on the limits of a legalistic outlook:
Law remains our litmus test. Very often the mightiest anathema we can muster for something we oppose is that it’s “illegal” or, even worse, “unconstitutional.” One of the first reasons given for the Iraq War’s wrongness is it’s “illegality”; today, the mass surveillance is denounced as “unconstitutional.”
These condemnations pack all the fierce visceral impact of Ned Flanders trying to curse. Would the Iraq War have been redeemed by a permission slip from the UN Security Council? Were the sanctions against Iraq, which killed hundreds of thousands, okay because they were in conformance with the UN charter? And even if the NSA surveillance is ruled unconstitutional is this really the problem with it? And what if the courts determine, as is entirely possible, that the NSA surveillance is legally permissible?
We urgently need to remind ourselves that “lawfulness” is never an indicator of wisdom, efficacy, prudence, or even justice. 99% of what led to the 2008 financial crash was perfectly legal, transactions working within the law according to legal incentives (and progressive calls to fix the financial system with more criminal prosecutions both misdiagnose and underestimate a systemic problem). Most of the horrors disclosed by Wikileaks — like the slaughter in the Apache helicopter video — are also legally permissible according to the laws of war as they actually exist.
The law is not nothing, but it sure as hell isn’t everything. The NSA scandal shows that freedoms are far more than legal phenomena, and that any successful pushback against the creeping police state will have to be based more in politics than in law.