May 9, 2015–The Court ruled, now it has ruled again. The United States Court of Appeals for the 2nd Circuit found unanimously that the National Security Agency’s bulk eavesdropping program is illegal. Section 215 of the USA Patriot Act, according to the Court’s opinion–called “blistering” in the Washington Post–cannot sustain the weight being put upon it by government officials who claim the provision authorizes their electronic spying on U.S. citizens.
Actually you read the argument here first, more than year ago, in a series of posts. Longer ago than that were some posts I did for the History News Network. In them I probed the meaning of the legal term “relevance” as it applies to the phone records the NSA was vacuuming up. For a very long time those posts were archived. Earlier this year I gathered them together in a longform post called The NSA Watch (you can find it in the “Product” section of this website). The 2nd Circuit’s unanimous opinion follows our reasoning precisely. The NSA’s “expansive concept of ‘relevance’ is unprecedented and unwarranted” according to the opinion. “At its core,” wrote Judge Gerard E. Lynch, lead author of the Court’s opinion, “the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations.” Meanwhile the application of such a standard equates to “an unprecedented contraction of the privacy expectations of all Americans.”
I recite this text and make the comparison to long-ago postings on this website to make this point: The reasons the NSA program is illegal were evident all along.
To cloak its actions the National Security Agency relied upon hysteria (and incomplete information) to quiet the doubts of Congress and mesmerize its captive judges on the Foreign Intelligence Surveillance Court, all the while hoping that if and when its actions were subjected to a real legal review, vague invocations of “terrorism” and “national security” would get NSA off the hook.
Let’s review the bidding– senior courts have found that the statute the NSA has relied upon to cover its domestic spying does not, in fact, authorize that intrusion. The law which contains Section 215, the specific provision at issue, is set to expire. The NSA–and the government as a whole–are unable to document more than a handful of cases, if that, which were assisted by its billions and trillions of intrusions. Most recently it was revealed that NSA officials themselves were questioning the viability of these programs on sheer cost-effectiveness grounds. Congress has failed abysmally in its oversight role.
But the real burden belongs at Fort Meade and with the NSA. The agency could have spared itself endless angst–not to mention fear of legal jeopardy and plain old-fashioned public ridicule. To repeat, the shaky legal rationale was evident from the beginning. Had the NSA simply said, “sorry, we made a mistake” and dismantled its offending program it would probably have earned some credit. Instead a constant procession of official attempts to justify the unjustifiable has left the agency in the position of dying from a thousand cuts of the knife. To put it another way, NSA is like a polar bear trapped on a rapidly shrinking ice flow that has broken off and drifted into the middle of the ocean.
–And by the way, some of the senators and congressmen who remain in thrall, trying to prolong this travesty, are the same people who tell us there’s no such thing as global warming.