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Orwellian or a Blunt Tool?: Conflicting Rulings on NSA Spying Set Up Likely Supreme Court Showdown

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A federal judge has upheld the National Security Agency’s bulk collection of U.S. telephone data just days after a separate court reached an opposite opinion. On Friday, District Judge William Pauley dismissed a lawsuit from the American Civil Liberties Union challenging the NSA’s mass collection of U.S. phone records. Pauley said telephone metadata could have potentially prevented the 9/11 attacks by alerting the government to hijackers who made phone calls from the United States. The issue will likely head to the Supreme Court — Pauley’s ruling comes less than two weeks after another federal judge questioned the program’s constitutionality and described the bulk collection as “almost Orwellian.” We’re joined by two guests: Jameel Jaffer, ACLU deputy legal director and director of its Center for Democracy; and Glenn Greenwald, the journalist who first broke the story about Edward Snowden’s NSA leaks.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We turn now to one of the biggest stories of 2013: the National Security Agency and its massive domestic and international surveillance apparatus. The German publication Der Spiegel has revealed new details about a secretive hacking unit inside the NSA called the Office of Tailored Access Operations. The unit was created in 1997 to hack into global communications traffic.

The Der Spiegel report includes a number of new details about the NSA’s hacking abilities. Hackers inside the secretive unit have developed a way to break into computers running Microsoft Windows by gaining passive access to machines when users report program crashes to Microsoft. With help from the CIA and FBI, the NSA has the ability to intercept computers and other electronic accessories purchased online in order to secretly insert spyware and components that can provide backdoor access for the intelligence agencies. In one secret operation called White Tamale, the NSA hacked into the communications of Mexico’s Secretariat of Public Security.

These revelations were published just two days after a federal judge dismissed a lawsuit filed by the American Civil Liberties Union challenging the NSA’s mass collection of U.S. phone records. U.S. District Judge William Pauley wrote, quote, “This blunt tool only works because it collects everything. Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the government’s counter-punch,” he wrote. The issue will likely head to the Supreme Court. Earlier this month, another federal judge questioned the program’s constitutionality and described it as “almost Orwellian.”

We’re joined today by two guests. Here in New York, Jameel Jaffer, deputy legal director of the ACLU and director of the ACLU’s Center for Democracy. And joining us from Brazil is Glenn Greenwald, the journalist who first broke the story about Edward Snowden. He was previously a columnist at The Guardian newspaper and is creating a new media venture with Laura Poitras, Jeremy Scahill and eBay founder Pierre Omidyar.

We’re going to begin right here with Jameel Jaffer. Jameel, talk about the judge’s ruling. What exactly did he rule?

JAMEEL JAFFER: Sure. Well, it’s a ruling that is limited to the bulk surveillance of metadata, telephony metadata. So, as you know, there’s a program that the NSA has in place now—has had in place now for seven years, at least—that collects information about every single phone call made or received on a U.S. telephone network. So that means every time you pick up the phone, the NSA is making a note, in some sense, of who you called, how long you spoke to them, when you called them, every single time you pick up the phone. And the NSA is doing that with respect to every single phone call made in the United States.

So we challenged the constitutionality of that program, and the judge, Judge Pauley here in the Southern District of New York, upheld the program, saying first that Congress had intended to prevent people like us—that is, the targets of this kind of surveillance—from challenging this kind of program in court, and also that the Constitution doesn’t foreclose the government from collecting this kind of information about everybody. Obviously, we disagree strongly with the decision. We think that it’s wrong in multiple respects, and we intend to appeal it.

AMY GOODMAN: Explain exactly who you represented in this lawsuit.

JAMEEL JAFFER: So, we represent the ACLU. I mean, obviously, I work for the ACLU myself, but the client in this case is the ACLU and the New York Civil Liberties Union. And these organizations are the clients because we are Verizon subscribers. And the order that was disclosed by Glenn and by The Guardian is an order that requires Verizon to turn over all of its information, all of this kind of information, to the NSA on a daily—on a daily basis. So, we have evidence now that our own communications were monitored in this way. We know that everybody’s communications are monitored in this way. And we were able to go into court to challenge the program because we have this evidence.

AMY GOODMAN: Glenn Greenwald, your response to the judge’s ruling, this ruling coming right after another judge, U.S. District Judge Richard Leon, called the NSA surveillance “almost Orwellian” and “likely unconstitutional”?

GLENN GREENWALD: I think the history of the post-9/11 era has been one of failed institutions, particularly those designed to check abuses by the executive branch and the intelligence community, beginning obviously with the U.S. media, the U.S. Congress, and I think the worst culprit has been the federal judiciary, which really is the most inexcusable because it’s supposed to be immunized from political pressures by life tenure, which Article III of the Constitution vests to federal judges specifically to say to them, “Your duty is to protect people’s rights, no matter how politically unpopular doing so might be.” And yet they’ve really led the way, with very few exceptions, in endorsing even the most extreme and radical forms of unconstitutional conduct.

And I think Judge Pauley’s decision is just a continuation of that, very typical. It begins by exploiting 9/11 to justify anything the government wants to do. And the reason why Judge Leon’s decision got so much attention was because it was such an amazing aberration. It was one of the very few ringing endorsements that the Constitution actually still matters in the war on terror. And we’ll have to see how these conflicts play out in the appellate courts.

AMY GOODMAN: Former NSA director, General Michael Hayden, addressed the issue of telephone surveillance in his interview with CBS’s Face the Nation on Sunday.

GEN. MICHAEL HAYDEN: Granted, millions, billions of phone records a day are acquired by the National Security Agency, but what follows, Major, is really important. What happens to that data? How often is that data touched? And the truth is, it’s touched two to three hundred times per year, and only based upon a reasonable, articulable suspicion that that number is affiliated with terrorism.

AMY GOODMAN: Jameel Jaffer, your response?

JAMEEL JAFFER: Well, I don’t think that should be reassuring to anyone. I mean, the fact is that this information rests in an NSA database. It is already being used pretty extensively. Three hundred times in a single year, the NSA has conducted what it calls queries into this data. Every time it conducts one of those queries, it looks at not just the information relating to the person who is suspected of being a terrorist, but the information of everybody who’s been in contact with that person, everybody who’s been in contact with those people, and everybody who’s been in contact with those people. So it’s millions of people every single time the NSA conducts a query.

And that assumes that the NSA is using the data only in the way that it says it’s using the data, and that it will use the data only in the way that it says it will use the data. And we know from past experience, we know from history, that that is not going to be the case. We know that this information will be abused, if not by this administration, by the next administration. At some point, a president will see it as politically valuable to have the information that’s in this database and to use it in ways that it wasn’t meant to be used.

AMY GOODMAN: I’d like to go to a clip from, well, at the time, Senator Joe Biden in 2006, now of course vice president. He criticized a similar call record collection program revealed under the Bush administration. He, too, was speaking on CBS.

SEN. JOE BIDEN: I don’t have to listen to your phone calls to know what you’re doing. If I know every single phone call you made, I’m able to determine every single person you talk to, I can get a pattern about your life that is very, very intrusive. And the real question here is: What do they do with this information that they collect that does not have anything to do with al-Qaeda?

AMY GOODMAN: Glenn Greenwald, your response?

GLENN GREENWALD: Yeah, you know, I think this underscores one of the most amazing things, Amy. As you know, when I began writing about politics in 2005, 2006, I focused on the NSA scandal at that time, which was that the Bush administration was spying on the telephone calls of Americans without the warrants required by law. And by far the biggest support that I got for the work I was doing was from Democrats and progressives and liberals, all of whom almost unanimously were highly supportive of that work because, as we just saw in that clip, Democrats, back then, understood the serious dangers posed by mass surveillance and by even the collection of metadata. And fast-forward now seven years later, when there’s a Democrat in office, and by far the biggest critics of the reporting that we’re doing, the most vehement defenders of the NSA, are people like Dianne Feinstein, but also just liberal and Democratic Party pundits and reporters and journalists all over the Internet who have suddenly decided that they are going to take it upon themselves to be great supporters of the NSA. Polling data reflects massive changes in how Democrats and progressives think about these issues, simply because there’s a new president in office who belongs to their party. And the Joe Biden clip really underscores just how unprincipled and hackish that faction of the Democratic Party has become, radically changing what they think based not on their own beliefs, but who it benefits in terms of power.

AMY GOODMAN: And, Glenn Greenwald, taking it forward to 2013 to President Obama and Vice President Biden right now, their latest responses in dealing with all the revelations around the NSA?

GLENN GREENWALD: What’s clearly underway, Amy, is the same thing that we saw in the 1970s, when the scandal over and concern over abusive eavesdropping powers was at least as great as what we have now, if not greater. And the idea was they needed a way to placate the public and to say, “Don’t worry, we’re putting these great safeguards on these powers, so you don’t have to worry anymore about abuse.” And what they really did instead was just created these symbolic gestures that really didn’t change much of anything, that just made the program prettier and then therefore more palatable. They said, “We’re going to create a court to oversee this,” and yet the court was created to be a very pro-government court and met in secret. Only the government could show up. And they’ve rubber-stamped everything. They said, “We’re going to create oversight committees in Congress,” and yet they installed the most slavish loyalists to the NSA, like Dianne Feinstein and Mike Rogers, as the committee chair to make sure those committees do nothing but bolster and defend the intelligence community rather than ever checking them or exercising oversight.

That’s what the president is now trying to do with this panel of hand-picked loyalists, to pretend that these reform—that there’s reform going on, and yet most of those proposals, though they sound nice, are actually going to achieve very little, if not make it worse, other than to try and convince the public that they need not worry. That’s the explicit goal of this reform process, to make the public more comfortable with these programs, not to meaningfully reform them.

AMY GOODMAN: We’re going to break and then come back to this discussion and particularly focus on the latest revelations in a piece that just came out from Der Spiegel about TAO and find out just what this is. People ordering online a computer or a cellphone, that computer being sent not to you directly, but detour—making a detour to the NSA, they put spyware in it, and then you get it? Just one of the revelations in this piece. We’re talking with Glenn Greenwald, who broke the story about Edward Snowden, previously a Guardian columnist, now creating his own media venture, and Jameel Jaffer, who is the deputy legal director with the ACLU. This is Democracy Now! We’re back in a minute.

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Glenn Greenwald: The NSA Can “Literally Watch Every Keystroke You Make”

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