Author Archives: Michael Froomkin

It used to be that having the NSA spy domestically was one of the unthinkable acts that one believed administrations understood were out of bounds. Sort of like the indefinite detention of US citizens in military prisons, or the torturing and killing of prisoners, or ‘rendering’ them to countries that torture.

Well, all bets, gloves, illusions are off.

It is time, therefore, to start asking if this administration is doing other things that were previously ‘unthinkable’.

Today brings suggestions that the administration spied on one or more journalists, and perhaps also on an occasional Democratic candidate and party operative. But don’t stop there. For example, someone should ask whether the new ‘anything goes without a warrant if it’s important enough’ standard for snooping extends to tax returns and to census data. It’s hard, after all, to imagine a legal theory that would allow the NSA to ignore FISA that would not also apply to all that delicious data just sitting there, even if it is hedged with statutory protections. That’s just Congress, after all, nothing serious.

Suggestions for other previously unthinkable questions that should be asked — not that we can trust any statement we get from this administration — painfully welcomed.