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

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A federal appeals court has ruled the National Security Agency’s bulk collection of millions of Americans’ phone records is illegal. The program was exposed by NSA whistleblower Edward Snowden; the ACLU filed its lawsuit based largely on Snowden’s revelations. In a unanimous decision Thursday, a three-judge panel of the Second Circuit Court of Appeals in New York called the bulk phone records collection “unprecedented and unwarranted.” The ruling comes as Congress faces a June 1 deadline to renew the part of the PATRIOT Act that authorizes the NSA’s bulk data surveillance. Another measure, the USA FREEDOM Act, would lead to limited reforms of some of the NSA’s programs. We are joined by Jameel Jaffer, deputy legal director of the ACLU, which filed the case challenging the NSA’s bulk collection of Americans’ phone records.

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

JUAN GONZÁLEZ: A federal appeals court has ruled the National Security Agency’s bulk collection of millions of Americans’ phone records is illegal. The program was first exposed in 2013 by NSA whistleblower Edward Snowden, and the ACLU filed its lawsuit based largely on Snowden’s revelations. In a unanimous decision Thursday, a three-judge panel of the Second Circuit Court of Appeals in New York called the bulk phone records collection “unprecedented and unwarranted.” Judge Gerard Lynch wrote, quote, “[T]he 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, quote, “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 1st 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 NSA programs, if passed.

Well, for more, we turn to Jameel Jaffer, deputy legal director of the ACLU, 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!

JAMEEL JAFFER: Thank you.

AMY GOODMAN: Talk about the significance of the court ruling.

JAMEEL JAFFER: Well, it’s a very important ruling. It’s 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’s an immense amount of information. They’re collecting it not only about suspected terrorists and suspected 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’s been winding its way through the courts.

And yesterday, we got this decision from a unanimous federal appeals court here 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 the PATRIOT Act has limits, and the government has gone beyond those 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’s exactly right. I mean, obviously, we wouldn’t be having this debate without the Snowden disclosures, and we wouldn’t have been able to get this ruling without the Snowden disclosures. Now, there were—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. And that’s one of the things that the court noted yesterday. They said that the ruling was based, in part, on the fact that there had been 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 at The Guardian.

GLENN GREENWALD: Why should people care about surveillance?

EDWARD SNOWDEN: Because even if you’re not doing anything wrong, you’re being watched and recorded. 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’ve 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 Gerard Lynch wrote in his opinion in this case, quote, “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 215(a), that—

JAMEEL JAFFER: Yeah, right.

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

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

AMY GOODMAN: —you know, 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’re having the congressional debate is that three provisions of the PATRIOT Act, including Section 215 are scheduled to sunset on June 1st, 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 least 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’ve just been talking about. But in Congress, there’s 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. You know, 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: But 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, didn’t they?

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 had said this doesn’t—this isn’t 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’s 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 your phone calls or going through your phone records, they’re lying. It just is not true.

AMY GOODMAN: Lying? Jameel Jaffer?

JAMEEL JAFFER: You know, 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, that kind of information, can be very, very sensitive, and it’s one of the things that 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’s very little that the government can’t find out by tracking your phone calls over a significant period of time.

JUAN GONZÁLEZ: And what’s 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: That’s right. That’s right. Yeah, it’s difficult to know because it’s so tied up with what’s going on in Congress right now. I think what happens next in the litigation is going to turn in part on what happens next in Congress. If Congress reauthorizes 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 do something other than seek Supreme Court review. So it’s 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 1st 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. And in some—the bill includes many—it has many worthwhile aspects. There are many good things about it. But its reforms are very limited. And even, I think, its proponents concede that its reforms are limited. Its champions include Senator Leahy and Senator Wyden, who have been privacy reformers from the beginning. But they’ve 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 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 back in 2013, shortly after Edward Snowden revealed that the NSA was engaged in bulk collection of American phone records. Obama refuted Snowden’s claim at that time.

PRESIDENT BARACK 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 people’s names, and they’re 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’ve 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’ve 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’d say that the administration’s tune has changed a little bit over the last couple years. You know, 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 from the administration itself, that the government could track suspected terrorists’ 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’s 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’s 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’s what he’s wanted from the beginning. And there is a debate about the issues in Congress right now. There’s a larger national debate about the issues. And there’s a debate about these issues in many other countries, as well, including Canada and France and Germany. And, you know, I think we all agree that that’s 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 the case challenging the NSA’a bulk collection of Americans’ 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’ll be back in a minute.

The original content of this program is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Please attribute legal copies of this work to democracynow.org. Some of the work(s) that this program incorporates, however, may be separately licensed. For further information or additional permissions, contact us.

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