The Vindication of Edward Snowden May 12, 2015Posted by rogerhollander in Constitution, Criminal Justice, Democracy, Surveillance, Surveillance State, Whistle-blowing.
Tags: aclu, bulk surveillance, conor friedersdorf, constitution, edward snowden, nsa, nsa secrets, patriot act, phone dragnet, roger hollander, state secrets, surveillance state, whistle blower, whistleblower
Roger’s note: I suppose, at least in theory, there may be a justification for a “state secrets” doctrine. I could picture an extreme circumstance where the democratic right of the people and their representatives to know could be trumped because making information public could aid and abet an enemy in an imminently dangerous way. Nevertheless, that doctrine has been used and abused over and over again to evade accountability; and I am not aware of a single case where it was used to avoid an actual danger.
But with respect to “legality,” I have often referred to a speech given many years ago by the notable civil liberties lawyer William Kunstler, which showed how some of the most noteworthy crimes in history — from the executions of Socrates and Jesus to the Nazi Holocaust — have been perpetrated under the color of “the Law.” My point is that men (sic) make the laws and the victors write the history. Take the issue under consideration in the following article, Snowden’s uncovering of NSA bulk surveillance. A federal appeals court says it is illegal. This will be appealed to the Supreme Court, which could well reverse with the result that was illegal one day becomes legal the next.
The Law and the judicial system are sacred and not to be taken lightly. But in the final analysis, it comes down who holds political and economic and military power. And in our world today those who own and operate monopoly capitalism are in the driver’s seat. Justice will not come about until they are dislodged.
A federal appeals court has ruled that one of the NSA programs he exposed was illegal.
Mark Blinch / Reuters
Conor Friedersdorf May 11, 2015 http://www.theatlantic.com
Edward Snowden’s most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the U.S.A. Patriot Act, citing Section 215, a part of the law that pertains to business records.
That claim was always suspect. The text of the law does not seem to authorize mass surveillance. A primary author and longtime champion of the law avows that Congress never intended to authorize the phone dragnet. And nothing like it was ever discussed during an extensive, controversy-filled debate about its provisions.
Now the wrongheadedness of the national-security state’s position has been confirmed.
A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. “Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,” Judge Gerard E. Lynch declared. “The sheer volume of information sought is staggering.”
Other conclusions reached by the three-judge panel include the following:
“The interpretation that the government asks us to adopt defies any limiting principle.”
“We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate …”
“Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program…”
“Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.”
Consider what this means.
Telling the public about the phone dragnet didn’t expose a legitimate state secret. It exposed a violation of the constitutional order. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved. Tens of millions of innocent U.S. citizens were thus subject to invasions of privacy that no law authorized. And the NSA’s unlawful behavior would’ve continued, unknown to the public and unreviewed by Article III courts, but for Snowden’s leak, which caused the ACLU to challenge the illegal NSA program.
Snowden undeniably violated his promise to keep the NSA’s secrets.
But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature. This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.
Any punishment for revealing the phone dragnet would be unjust.
Now that a federal appeals court has found that Section 215 of the Patriot Act did not in fact authorize the policy, punishing a man for exposing the program would set this precedent: Whistleblowers will be punished for revealing illegal surveillance. That’s the position anyone who still wants Snowden prosecuted for that leak must take, if the ruling stands. (Other federal courts have issued rulings pointing in contrary directions, and this latest ruling will likely be appealed.)
Does the PATRIOT Act Allow Bulk Surveillance?
Consider how this federal court ruling informs the debate over state secrets generally. Civil libertarians have long warned that secret national-security policies undermine both representative democracy and our system of checks and balances.
And that is exactly what happened with respect to the phone dragnet!