Finally, nearly two years after Edward Snowden spilled the beans, we’ve gotten some serious judicial clarity on whether the government’s domestic phone spying is legal. Turns out, it’s not.
In a unanimous ruling yesterday – a ruling that will resonate politically in Congress (like, now) – a federal appeals court assailed the National Security Agency’s sweeping surveillance as “an unprecedented contraction of the privacy expectations of all Americans.” In other words, the program, ordered in secret by President Bush, violates the Fourth Amendment ban on unreasonable government seizures.
The trio of judges said that Section 215 of the Patriot Act permits only the collection of phone records that can be deemed “relevant” to a national security case, but that Bush and the NSA interpreted the word “relevant” in the broadest possible way. The judges said that Section 215 “cannot bear the weight the government asks us to assign to it…it does not authorize the telephone metadata program.”
Well. That clears up some of the confusion – because I recall that back in December ’13, we got two diametrically different rulings, in two lower federal courts, in a span of 11 days. First, U.S. District Judge Richard Leon derided the NSA’s behavior as “Orwellian,” as a “significantly likely” violation of the Fourth Amendment. But soon after, U.S. District Judge William Pauley ruled that the NSA is wielding a “vital tool” in the war on terrorism, a program that, despite its seemingly indiscriminate sweep, does not violate the Fourth Amendment.
So now we have three appeals judges speaking with one voice. Basically, they’re saying that if Congress wants to continue this domestic surveillance, it needs to rewrite Section 215 in a way that specifically sanctions the practice. Judge Gerald Lynch writes that “if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously….But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.”
And what timing! It just so happens that Congress is currently arguing over whether to renew Section 215 – to keep it, or abolish it, or rewrite it – because it’s set to expire on June 1 unless action is taken. Rest assured that the lawmakers hate being forced to take a stand on an issue that weighs privacy against security (or vice versa), especially in this fearful era.
Plus, the politics are very complicated, because the fans and foes of NSA spying do not sort themselves along predictable partisan lines. Starting with the fact that President Obama endorsed the Bush spying program when Section 215 was last up for renewal.
It’s the same with the judges. The federal appeals trio that ruled yesterday against phone spying are Obama and Bill Clinton appointees. But check out those lower court judges I mentioned earlier: Leon, who called the spying program “Orwellian,” was appointed to the bench by Bush. Pauley, who hailed the program’s ubiquity (“this blunt tool only works because it collects everything”) was appointed to the bench by Clinton.
And it’s the same blurring of partisan lines on Capitol Hill. Senate Republican leader Mitch McConnell wants to renew Section 215 as it is, and keep the NSA program intact (thus ignoring the federal appeals court ruling); if he were to succeed, the Obama administration would probably be fine with it. But he might not have the votes, because libertarians like Rand Paul loathe the privacy violations. And here’s a bipartisan statement from liberal Democrat Patrick Leahy and tea-partying Republican Mike Lee: “Congress should not reauthorize a bulk collection program that the court has found to violate the law. We will not consent to any extension of this program.”
Meanwhile, there’s serious anti-NSA sentiment in the Republican House. Justin Amash, a tea-partying congressman, said recently, “No serious representative or senator thinks it’s OK to reauthorize unconstitutional spying on all Americans.” Various half-measure reforms are being kicked around in both chambers – keep some of the spying, add more safeguards and oversight – and nobody knows whether this will all be sorted out by June 1.
But at least we know what’s going on; at least this debate is playing out in public. For that, we can thank Snowden. If not for his revelations, we’d probably be stuck with the blatant lie uttered in early ’13 on Capitol Hill. That’s when Sen. Ron Wyden asked U.S. intelligence chief James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” And Clapper replied, “No, sir. Not willingly.”
Not willingly. Contrast that whopper with what we now know, as scathingly described in yesterday’s appeals court ruling:
“The records demanded (routinely by the government) are not those of suspects under investigation, or of people or businesses that have contact with such suspects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist…with no foreseeable end point, no requirement of relevance to any particular set of facts, and no limitations.”
But here’s the thing. Even if Congress votes by June 1 to shut down the mass surveillance, how will we ever know whether the NSA has complied?
On a lighter note…
The right-wing paranoia over Operation Jade Helm 15, the military’s summer training program, has been the talk of Twitter all week. This was my favorite tweet:
“I’m a Levon Helm guy in a Jade Helm world.”
True that. And here’s Levon, to ease you into the weekend. We miss you, man!