> My point is addressing the surveillance in Their own terms
I believe this is a mistake. The core argument should remain that surveillance is immoral. That it doesn't work is just a bonus, but arguing on these terms could give proponents the impression that they're generally on the right track and that people just want them to work harder at it.
I agree. Unwarranted suspicionless surveillance is unconstitutional. End of discussion. To even entertain arguments about efficacy is an implied admission that it might be acceptable if it caught bad guys. Even worse, if all they need to do to sell it, is to show a positive result; you can bet that they will bag themselves some "terrorists" in pretty short order.
Unconstitutional is an argument that tends to have more weight. Immoral is a weak position to take when my opinion on morality and yours probably aren't the same - and for most people surveillance is full of grey areas.
Aren't they already? Ethics are subjective. There is always a minority that disagrees with the ethical basis for any given law. But there is an ethical basis that prompted getting the law passed.
You missed a pretty vital part of this - which is that laws are derived (at least theoretically in a democracy) from the majority view on ethics and morality.
We are a democracy once every 4 years ... and that extends only as far as the legislative branch. Our government(s) are composed of more than just elected representatives. We have civil servants that propose and draft the law, judges that interpret it, and police officers who enforce it. Do any of these groups give more than a passing damn about elections or the will of the majority? Or are they more easily subverted by the glare of the latest media frenzy, selfish consideration of their own career advancement, or innate primal urges towards jingoism, nepotism and authoritarianism?
Surveillance may be immoral, but so is warfare, imprisonment, the death penalty, taxation, graft, cronyism, corruption, or pretty much anything else to do with the domination of the state over the subservient individual.
Ah, but the constitution permits or has a process for war, imprisonment, death penalties and taxes. (The others you lump in, not so much, though you could argue about cronyism).
At least surveillance can be dealt a blow by withdrawing funding.
Does the presence of a process make it any less immoral?
I am sure there are drug cartels with a very rigorous process that they go through when they carry out a revenge killing --- first, extract the pancreas, then the spleen ....
Tell a judge "rule this way, because it's moral" and he'll tell you to get out of his court. (Modulo cronyism and the possibility that a judge is prejudiced and/or crooked).
Having an argument based on law is much harder to argue against than someone's personal set of moral values.
Looking into cultures where "legal" things are decided with a moral system (e.g., most theocracies) I see a lot worse stuff going on. I'm not trying to minimize the nasty and disgusting surveillance system the US has in place, I'm just saying that rule by morality is a double-edge sword.
Why does US legal system rely so much on "due process of law"? I think it nearly ignores the spirit of law. That's why US government managed to grow surveillance for so long. It just followed the process for as much as it could manage.
I believe this is a mistake. The core argument should remain that surveillance is immoral. That it doesn't work is just a bonus, but arguing on these terms could give proponents the impression that they're generally on the right track and that people just want them to work harder at it.