Ben, Me, and the Very Gray Area Between "Clearly Legal" and Lawlessness

[Updated (11:34 a.m.): Ben rightly points out to me that his reply does not use the phrases "clearly legal" or "settled," and so my use of quotation marks around those terms may convey the wrong impression. Just to clarify, Ben never uses those terms as such; rather, they're my reading and my characterization of his original post--albeit what I believe to be a fair and accurate view of his position.] Ben's reply moves the goalposts in our discussion of the legality of the NSA's surveillance activities under sections 215 and 702. Recall that Ben's original post was emphatic that "the NSA's activities are legal," chastising those who still aren't convinced and concluding that we're now just having a "policy debate" about the wisdom of the government's surveillance powers. His reply to me is devoted to the altogether distinct and more nuanced proposition that the NSA's activities are not clearly illegal--that the government "has followed the legal rules Congress set down for it," and that "If I were a lawyer at DOJ or NSA, [the legislative and judicial processes leading to the status quo] would seem pretty good to me." Ben may believe that this is the same argument as what he offered yesterday, but it's just not. First, there is a still a fairly substantial debate over whether the government has in fact "followed the legal rules Congress set down for it." Indeed, the fact that the government has affirmatively misrepresented its activities (and its understanding of its authority) to the FISA Court on at least three occasions should give us all reason to treat such assertions with considerable skepticism. Is Ben's point that the government is now following the rules Congress laid down (since one can infer from these misrepresentations that it wasn't at various points in the past)? Second, Ben appears to believe that the fact that Congress hasn't rejected the Executive Branch's sweeping interpretation of its authorities necessarily validates that interpretation. Even assuming one can impute the scattershot knowledge of certain members of the intelligence committees to Congress at large, we hopefully all remember from the famous Steel Seizure case that this argument simply doesn't follow. The question is what Congress intended, and Congress's failure to clarify its intentions is not per se validation of the Executive Branch's interpretation. Finally, Ben says "We don’t generally define illegality according to the possibility that some court might some day strike something down." At that level of generality, I agree. But the problem here is more concrete: The only court to uphold the government's interpretation has (1) in fact pushed back with some force; and (2) in any event only approved the government's activities in ex parte, mostly secret rulings subject to neither meaningful adversarial process nor appellate scrutiny. It's certainly correct to say that, to date, the government's interpretations have (largely) been upheld--but it's just as true to say that, to date, President Obama's intrasession recess appointments have been struck down as unconstitutional. That just doesn't mean that it's "settled." Ben writes that "People who want to argue that our government is behaving lawlessly should have some positive basis for saying so." This is exactly our point of departure. It is not my point (or my view) that the government is behaving lawlessly. I'm just suggesting that it's an open question, and I'm critiquing Ben for treating with such apparent disdain those of us who believe the government's case has not yet been proven. It's a false dichotomy--and a counterproductive one, in my view--to suggest that, if the government's activities are not clearly unlawful, then they are clearly lawful, and this is now just a "policy debate."