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

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 1st 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 American’s phone records.


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

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 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, 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 NSA programs if passed. 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! 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 at The 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 –


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 sun set 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.