The distinction you are looking for does not exist. The primary justification for what the NSA is doing is crime: namely terrorism. The entire purpose of the NSA is to find criminals, which is a problem, because the definition of criminal can be anything the people in power want it to be.

For instance in the UK they're busy trying to crack down on "extremism". The Prime Minister has given a speech about extremism where he actually said words to the effect of "For too long we have been a passively tolerant society where if you follow the law, we leave you alone". GCHQ is absolutely being mandated to find extremists. It's merely the next chunk of the slippery slope that started the moment the law changed to try and fight terrorists.

>The primary justification for what the NSA is doing is crime: namely terrorism. The entire purpose of the NSA is to find criminals

Is it? My understanding is that NSA was founded for intelligence and counter-intelligence purposes. Cold war. SIGINT. And that is what it still does, although the capabilities of international terrorist/criminal organisations have become comparable to the capabilities of many nation states.

CIA is also an intelligence agency, but human intelligence (HUMINT), not signals intelligence. FBI, on the other hand, has a primary justification of fighting crime. DEA is quite similar but focuses on drug crime, and ATF on alcohol, tobacco and firearms. CSI conducts mass campaigns against people with some intelligence in all countries, with sub-offices in CSI (NY) and CSI (Miami).

(I'm not American, but have learned this much about the American three-letter things, mostly from popular fiction.)

It could be interpreted that the NSA exists to catch criminals. Spying on the US government is a crime in the eyes of the US government, no matter where you conduct said spying. Counter-intelligence is an effort to catch those that spy on the US government, despite the fact that is likely illegal in the country of the person being spied upon. Although, what they do in terms of counter-intelligence doesn't always turn into criminal proceedings.

I think that the role of counter-intelligence is most of the time not really catch anyone, but to 1) get information from an adversary, and 2) develop methods which allow to protect own information against adversaries.

Hence, my last sentence.

But I've always understood a part of counter-intelligence is to counter the intelligence gathering of an adversary, or I suppose ally as well depending on circumstances. Which is what you are saying with your second point. Therefore, there is someone to catch doing it, just in a broad definition of the term.

Spying on the U.S. is not a crime, and doesn't need to be. Between sovereign entities there is no rule of law, and sovereign entities have an inherent right to do whatever they need to protect their interests. It's a very different situation from the domestic criminal justice system.

As I said earlier, spying on the US government is a crime in the eyes of the US government. I think many a caught spy that was convicted for espionage would disagree with your statement that it is not a crime.

Yeah I'm having trouble with that argument too. How do you reconcile "countries interact in the lawless state of nature" with high-profile espionage prosecutions of non-citizens?

And there's the rub: I don't think most free citizens consider the murdering of thousands of people to be a crime. An attack, an act of war? Sure. But some weird version of a spree killing? Not so much. Especially when we're seeing large NGOs with missions to destroy/incapacitate existing nation-states.

So to argue that "it's all the same" really does a disservice to the analysis here. It's not. In the past, we had clear lines of civilization: pirates and others who operated without being part of a nation-state were executed on the spot. Now, however, we want to treat anybody we meet as being all the same. That's a nice sentiment, but it ends up classifying ISIL as some weird kind of criminal organization, and it is most certainly not that kind of thing at all.

I think the problem here is the idea of allowing those that execute pirates on the spot to also be the group that identifies the pirates. Just because someone has the P brand on the back of their hand doesn't mean they started out as a pirate.

Besides, one country's buccaneer is another country's privateer. I don't think those lines were as clear as you seem to think.

Terrorism is not crime. It's war. It is a grave threat to the criminal justice system to try and conflate the role of the military and the role of the police by treating (foreign) terrorists as criminals and not combatants.

Counterargument: war is a conflict between sovereign states. Terrorism is violence utilized by political pressure groups, not sovereign states. Terrorists are no more at "war" with the US than the Al Capone gang was, or Zetas gang in Mexico.

The Taliban was a sovereign state that, for a basket of reasons, actively supported terrorist attacks on the US. The invasion of Afghanistan was a war.

Al Qaeda is not a sovereign state; they're a criminal organization.

What makes it difficult to prosecute Al Qaeda using US criminal procedure is the fact that they're mostly non-citizens, mostly operating out of the US, mostly in countries that are not especially cooperative with the FBI.

In fact, I think my counterargument says that the "grave problem" is the opposite of the one you pose. It's not that prosecuting Al Qaeda criminally risks corrupting the criminal justice system. It's that prosecuting them as a sovereign who we're at war with has demonstrably corrupted the military.

Historically, we have dealt with belligerent non-sovereigns (e.g. pirates) via the military. How do you think treating Al Qaeda as a military threat has corrupted the military? My great worry is that if terrorism is treated as a crime, then the protections available to all accused criminals will be watered down to accommodate the needs of prosecuting terrorists. That's what, e.g., has happened in the drug war. There are a lot of bad doctrines (e.g. no-knock warrants) that were motivated by the drug war (specifically the ease of concealing or destroying evidence of drugs).

By blurring the line between law enforcement and military actions we've made it much to easy to deploy military force (most notably airstrikes) as a means to expediently solve problems. Where does that slippery slope end? When do we start carpet bombing drug cartels? We've already been invited to do that.

War doesn't have to between sovereign states. War against non-state actors is accepted as valid.

The US constitution even has provisions for it: Congress can call forth the militia to suppress insurrection.

I think, with all due respect, that that's a load of bollocks. Commercial data collection is abhorrent for a variety of reasons, but large-scale, secret government collection of data is a threat to democracy regardless of safeguards.

When I said all collection was not wrong I meant targeted collection, with a warrant and some oversight.

Anyone having access to a database containing the information for large proportions of the population is being handed more power than humans should have over each other, more than enough to blackmail a few key politicians and keep things looking rosy for themselves.