Court Rules NSA Bulk Spying Illegal: New Vindication for Snowden, and Uncertainty for PATRIOT Act

JUAN GONZÁLEZ: Welcome to all of our listeners and viewers around the country and the world. A federal appeals court has ruled the national security agency’s bulk collection of million of American’s phone records is illegal. The program was first exposed in 2013 by NSAwhistleblower Edward Snowden. And the ACLU filed its lawsuit based largely on Snowden’s revelations. In a unanimous decision, Thursday, a three-judge panel, a second circuit court of appeals in New York, called the bulk phone records collection unprecedented and unwarranted. Judge Gerald Lynch wrote, “the government does not even suggest that all of the records sought or even necessarily any of them are relevant to any specific defined inquiry. In a concurring opinion, Judge Robert sack wrote, “considering the issue of advocacy in the context of deliberations involving alleged state secrets, and more broadly, the ‘leak’ by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg, that gave rise to the legendary ‘Pentagon Papers’ litigation.”

AMY GOODMAN: Thursday’s ruling comes as Congress faces a June 1 deadline to renew part of the patriot act that authorizes the NSA’s bulk data program. Another measure called the USA Freedom Act would lead to limited reforms of some NSAprograms if passed. For more, we turn to Jameel Jaffer, Deputy Legal Director of theACLU which filed the case challenging the NSA’s bulk collection of Americans’ phone records. His new article for Slate is called, “Flip the Patriot Act’s Kill Switch: Let the Worst Parts of the Law Die.” Well, Jameel, welcome back to Democracy Now! Talk about the significance of the court ruling.

JAMEEL JAFFER: Well, it is a very important ruling. It is something that we have been looking for now for almost two years since the first Snowden disclosures. This is a lawsuit relating to the call records program which is a program under which the NSA is collecting information about essentially every phone call made in the United States. Every time you pick up the phone the NSA has a record of who you called and how long you spoke to them and at what time you called. And that is an immense amount of information. They are collecting and not only about suspected terrorists and criminals, but about everybody, everybody in the country. So we challenged that program right after the first Snowden disclosures back in June of 2013, and it has been winding its way through the courts. And yesterday, we got this decision from a unanimous federal appeals court in New York and the opinion essentially says that the call records program isn’t authorized by the statute that the government is relying on. The Patriot Act is very broad, but even that has limits. The government has gone beyond the limits. So it’s a great ruling and it’s significant, not only because if the ruling stands, if it’s not overturned, it will end the call records program, but also because the same legal theory that the government is relying on to justify the call records program, it’s relying on to justify many other mass surveillance programs as well. So this ruling is going to require the government to reconsider some of those other programs as well.

JUAN GONZÁLEZ: And isn’t this, in effect, a major vindication by a federal appeals court of the actions of Edward Snowden in that if Snowden had not come forward with this information, this court case would not even possibly have reached this level.

JAMEEL JAFFER: That is exactly right. I mean, obviously, we would not be having this debate without the Snowden disclosures and we wouldn’t have been able to get this ruling. There were judicial decisions, even before the Snowden disclosures, relating to this program. Those decisions were made in secret, not published. Only the government had appeared before the Foreign Intelligence Surveillance Court. So it all happened behind closed doors. But because of the Snowden disclosures, we were able to have adversarial review of the program for the first time. That is one of the things that the court noted yesterday. They said that the ruling was based, in part, on the fact that there was adversarial review.

AMY GOODMAN: This is Edward Snowden speaking about the NSA surveillance programs in the first video interview he did with Glenn Greenwald who was, at the time atThe Guardian.

GLEN GREENWALD: Why should people care about surveillance?

EDWARD SNOWDEN: Because even if you are not doing anything wrong, you are being watched and reported, and the storage capability of these systems increases every year, consistently, by orders of magnitude, to where it’s getting to the point you don’t have to have done anything wrong. You simply have to eventually fall under suspicion from somebody, even by a wrong call, and then they can use the system to go back in time and scrutinize every decision you’ve ever made. Every friend you have ever discussed something with and attack you on that basis to sort of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.

AMY GOODMAN: That’s Edward Snowden. Judge Gerald Lynch wrote in his opinion in this case, “The sheer volume of information sought is staggering, while search warrants and subpoenas for business records may encompass large volumes of paper documents or electronic data, the most expansive of such evidentiary demands are dwarfed by the volume of records obtained pursuant to the orders in question here.” So, Jameel Jaffer, if you can you comment on this, and what does this mean for Congress? Section 215 —- does that include section 215a that -—

JAMEEL JAFFER: Right.

AMY GOODMAN: —- you know, that librarians being asked questions about -—

JAMEEL JAFFER: It’s the same provision, the same provision.

AMY GOODMAN: — what did a patron — ? So it’s all the same thing. What does this mean? As early as yesterday morning the Senate Majority Leader Mitch McConnell was talking about how they weren’t going to change this.

JAMEEL JAFFER: Right, right. I think he’s still talking about that. So we get this decision in the middle of this congressional debate, and the reason we are having the congressional debate is that three provisions of the Patriot Act, including Section 215 are scheduled to sunset on June 1, meaning that they will go away unless Congress does something. Now we actually think they should go away that these provisions should never have been — at lease Section 215 — should never have been enacted in the first place. But at the very least, Congress should make strong reforms to prevent the kinds of abuses that we have just been talking about. But in Congress, there is a real split. There are some legislators, including the Senate majority leader, who want to extend section 215 in its existing form and to allow this kind of surveillance, this kind of mass surveillance to continue indefinitely. There are other legislators, pro privacy legislators, who would like to scale back section 215 in some ways. As I said, we have been calling for a sunset of 215. But at the very least, I think that yesterday’s opinion makes clear that the reforms that are on the table right now don’t go nearly far enough and that the reform side should really strengthen the bill.

JUAN GONZÁLEZ: The court not only ruled this illegal, but also said that Congress is free, if it so chooses, to enact laws that would make this legal.

JAMEEL JAFFER: Well that’s right. So basically, what the court said is — so we had argued both on statuary grounds and constitutional grounds. We have said this is not authorized by the statute and even if it is authorized by the statute, the Constitution doesn’t allow it. But because the court agreed with us on the first question it didn’t have reach all the constitutional questions. So the court basically said this statute doesn’t allow it. Congress, if you want to pass a statute that allows it, go for it, but in that case we’ll have to consider whether it is constitutional or not.

AMY GOODMAN: On Thursday Republican presidential hopeful Florida Senator Marco Rubio addressed the NSA surveillance.

SEN. MARCO RUBIO: The perception has been created including by political figures that serve in this chamber, that the United States government is listening to your phone calls or going through your bills as a matter of course. That is absolutely, categorically false. The next time that any politician, senator, congressman, talking head, whatever it may be, stands up and says that the U.S. government is listening to phone calls or going through your phone records, they’re lying. It just is just not true.

AMY GOODMAN: Lying? Jameel Jaffer?

JAMEEL JAFFER: This is very frustrating because what Senator Rubio is doing here is creating a straw man. Nobody is saying that this program is about listening to phone calls, it’s not. It’s about tracking phone calls. It’s about tracking who you call and when you call them. And that kind of information can be very, very sensitive, and it is one of the things the Second Circuit acknowledged yesterday. The government says, look, it’s not content, but that doesn’t mean it’s not sensitive. The government, with this kind of data, can track your political beliefs, your religious beliefs, your medical history, your intimate relationships. There is very little that the government can’t find out by tracking your phone calls over a significant period of time.

JUAN GONZÁLEZ: And what is the likelihood of the Obama administration seeking to appeal this to the Supreme Court? Obviously the administration itself has been talking about changes to the current status.

JAMEEL JAFFER: Yeah, it’s difficult to know because it’s so tied up with what is going on in Congress right now. I think what happens next in the litigation is going to turn in part on what happens in Congress. If Congress reauthorize section 215 in its current form, then I would expect that the intelligence community would want to appeal this, would want to ask the Supreme Court to review the Second Circuit’s decision. If congress changes the law in some ways it may have an effect on the litigation and may lead the administration to something other than seek Supreme Court review. So it is a little bit hard to say.

AMY GOODMAN: How does this relate to the USA Freedom Act.

JAMEEL JAFFER: So the USA Freedom Act is an effort to — it’s a response to this June 1 sunset that’s impending. USA freedom is an effort to scale back section 215 in some ways and to create reforms to some of the other provisions of the Patriot Act. The bill includes many — it has many worthwhile aspects. There are many good things about it. But it’s reforms are very limited. And even, I think, its proponents concede that its reforms are very limited. Its champions include Senator Leahy and Senator Wyden, who have been privacy reformers from the beginning. But they have had to make a lot of concessions to the intelligence community in order to keep the NSA on board, to keep the administration on board. And so now the bill is actually now fairly weak. And so we are hoping that the decision that we got yesterday will change the dynamic on the hill and will create the possibility that that reform bill becomes stronger than it is right now.

JUAN GONZÁLEZ: I wanted to ask you about President Obama’s comments in 2013, shortly after President Obama revealed that the NSA was engaged in bulk collection American phone records. Obama refuted Snowden’s claim at that time.

PRES. BARAK OBAMA: When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at peoples names and they are not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they have got to go back to a federal judge. Just like they would in a criminal investigation. So I want to be very clear. Some of the hype that we have been hearing over the last day or so, nobody is listening to the content of people’s phone calls.

JUAN GONZÁLEZ: That was President Obama in 2013. Marco Rubio sounds like he took those words practically verbatim.

JAMEEL JAFFER: Right, right. Although I would say that the administration’s tune has changed over the last couple years. We now know, from the administration and from two official review groups, that this is a program that has never been pivotal in any terrorism investigation. We also know from the review groups and the administration, itself, that the government could track suspected terrorist phone calls without tracking everybody’s phone calls. So given those two acknowledgments, it becomes very difficult for the government to defend this program. And I think that you see evidence of that in yesterday’ decision.

AMY GOODMAN: So you brought this lawsuit, the American Civil Liberties Union. You represent Edward Snowden. What is he saying in Russia? And what does this mean for his case; his ability to come home?

JAMEEL JAFFER: Well, I mean, he is obviously — he’s thrilled by the decision. He hasn’t spoken publicly about the decision, in part, because he’s happy with the debate being about the issues. That is what he has wanted from the beginning. There is a debate about the issues in Congress right now. There is a larger national debate about the issues. There is a debate about these issues in many other countries as well, including in Canada, in France and Germany. I think we all agree that that is what people should be focused on.

AMY GOODMAN: Well, Jameel Jaffer, we thank you so much for being with us, Deputy Legal Director of the ACLU which filed a case challenging the NSA’a bulk collection of American’s phone records in June of 2013, shortly after Edward Snowden disclosed the program’s existence. Jameel’s article for Slate is called “Flip the Patriot Act’s Kill Switch: Let the Worst Parts of the Law Die.” We’ll link to it at democracynow.org. We will be back in a minute.