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You are here: Home / Edward Snowden, American Hero

Edward Snowden, American Hero

by | 62 Comments

This post is in: 

I missed this last week, but this is great news:

In a major vindication for Edward Snowden — and a blow for the national security policy pursued by Republicans and Democrats alike — the U.S. Court of Appeals for the Second Circuit ruled Thursday that the National Security Agency’s metadata collection program is unlawful. This is the most serious blow to date for the legacy of the USA Patriot Act and the surveillance overreach that followed 9/11.

The central question depended on the meaning of the word “relevant”: Was the government’s collection relevant to an investigation when it collects all the metadata for any phone call made to or from anywhere in the U.S.?

The court said no. That was the right decision — not so much because it protects privacy, as because it broke the bad precedent of secret law created by the NSA and endorsed by the secret national security court known as the Foreign Intelligence Surveillance Court.

The first striking thing about the court’s opinion was how openly it relied on Snowden’s revelations of classified material. The court described how the program was known — by Snowden’s leaks. It also analyzed the NSA order to Verizon, leaked by Snowden, that proved the existence of the program and revealed indirectly the legal reasoning that the government relied on to authorize the metadata collection.

The Second Circuit seemed supremely untroubled by the origin of the information in a violation of classification laws. At one point, it noted that the government disputed the claim that virtually all metadata are being collected — then dismissed the government’s suggestion as unconvincing in the light of the evidence. Today, it would seem, the Snowden revelations are treated as judicially knowable facts, at least in this court.

Then there’s the legal reasoning, which was equally striking. To get to the conclusion of unlawfulness, the Second Circuit initially had to find that anyone who has had metadata collected — that is, anyone in the U.S. — has the right to sue and challenge the statute.

The government said no one could challenge the NSA program except the telephone companies, like Verizon, who received the order. Its logic was particularly Orwellian. The Department of Justice argued that the Patriot Act demanded secrecy in reviewing challenges to the surveillance program. The secrecy, in turn, implied that the statute meant to preclude anyone from challenging the program under the non-secret provisions of the Administrative Procedure Act, the catch-all statute for challenging unlawful government programs.

The Second Circuit wisely rejected what it called this “argument from secrecy.” It reversed a lower district court that had refused to allow the suit to proceed, and set the stage for an analysis of relevance under the statute.

Those who attack Snowden miss the fact that had he not done what he had done, the courts wouldn’t even have the capability to know what the government was doing in order to judge the legality. That’s the catch-22 that is terrifying. They secretly do whatever the fuck they want, and then no one is even allowed to determine whether what they are doing is proper.

The Intercept is releasing a great deal more of the Snowden archive. You should check it out.

*** Update ***

Apparently wrong way Cole can’t read bylines. This was from last YEAR, not last week. No idea how I stumbled across it in my browsing yesterday. So yes, I’m an idiot.

Reader Interactions

62Comments

  1. 1.

    MattF

    ‘Fail to miss’ is an overnegation. The blog Language Log has an ongoing series of posts demonstrating that our monkey brains just can’t deal with more than one level of ‘not’s.

    ETA: And yay Snowden too.

  2. 2.

    Gin & Tonic

    If downstairs didn’t get a TBogg yet, there’s certainly hope for this one.

  4. 4.

    agorabum

    The original case allowing the government to withhold details in a court proceeding under ‘national security’ was actually all based on a lie. There was a military plane crash that had some civilian technicians on it; the widow sued the government for negligence and the government claimed everything related to the flight was and must remain classified under national security. The court agreed and dismissed the lawsuit. 50 years later, the truth came out; there was nothing classified going on and it was just poor maintenance that caused the crash.

  8. 8.

    Bess

    It’s not what he did but how he did it.

    There are likely multiple ways to bring the government’s misdeeds to light other than just dumping everything out on the table.

  9. 9.

    Punchy

    OT, but can any of you high-paid loyerz on this site explain just WTF the SCOTUS did today with their ruling w/r/t the BC mandate? I thought it was pretty obs that the plantiffs really weren’t gong to allow for any “negotiation”, or any reasonable compromise. What makes SCOTUS think that sending it back to the lower courts would change their mind? What haps if the lower court cannot get them to agree to a compromise?

  10. 10.

    I'mNotSureWhoIWantToBeYet

    Meh. This is from last year, not this year, JC.

    Try again? ;-p

    Cheers,
    Scott.

  11. 11.

    I'mNotSureWhoIWantToBeYet

    @Punchy: ScotusBlog is the go-to place for questions like this. Lyle Dennison:

    Without settling any legal issues surrounding the Affordable Care Act’s birth-control mandate, the Supreme Court on Monday nevertheless cleared the way for the government to promptly provide no-cost access to contraceptives for employees and students of non-profit religious hospitals, charities, and colleges, while barring any penalties on those institutions for failing to provide that access themselves. Thirteen separate cases were sent back to federal appeals courts for them to issue new rulings on the questions the Justices left undecided. One immediate issue is how soon the government can work out the technical arrangements to provide actual access to the contraceptive benefits.

    The Court largely shifted to six federal appeals courts the task of ruling on the mandate’s legality — the task that the Court had agreed last November to take on itself in seven of the cases. Five appeals courts had ruled in favor of the mandate, and one had ruled against. All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases.

    […]

    One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.

    Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.

    The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.

    […]

    HTH.

    Cheers,
    Scott.

  12. 12.

    geg6

    @Bess:

    Yup. Talk about entitled assholes, that’s your Mr. Snowden. He’s not my hero and he never will be. There’s nothing he has produced that surprised me or made me as paranoid as John Cole and Glenn Greenwald want me to be. As far as I’m concerned, he can stay in Russia until he dies. And hopefully, I never have to hear his name or see his face again.

  13. 13.

    Adam L Silverman

    @Punchy: IANAL, but the strategy is to play for time. Neither bloc on the court trusts the other to try to even write a narrow ruling and, more importantly, neither bloc on the court trusts Associate Justice Kennedy at all to not even try to write a concurrence that would screw up a very narrow ruling. So they kicked it back down to play for time until the ninth justice can be confirmed. Sometimes that’s the best you can do from a strategic viewpoint.

  14. 14.

    smintheus

    @Punchy: I think this line in the ruling is key to understanding their motivation:

    “We just can’t deal with these people anymore, we really can’t.”

  15. 15.

    sigaba

    @MattF:

    The blog Language Log has an ongoing series of posts demonstrating that our monkey brains just can’t deal with more than one level of ‘not’s.

    I don’t know what the problem is, in Russian at least, multiple negations add emphasis to the negation of the verb phrase, same in Spanish too I understand.

  16. 16.

    Adam L Silverman

    @geg6: @Bess: I think there are two distinctly different issues here. The first is that the conversation that his actions generated are a necessary, if not a good, one for Americans to have in regard to how our government functions, especially in regard to its security functions. The second, however, is that this was clearly the wrong way to do this. It would have been one thing to have done what Mr. Snowden did and not fled first to the Chinese (a competitor attempting to achieve peer status) and then to the Russians (a competitor attempting to re-achieve peer status). While some of the best advice I ever heard given to an audience of American national security professionals is that “China only has to become an enemy if we make it one”, I am much less sanguine about Russia under the leadership of Mr. Putin. He clearly and unequivocally has established himself and Russia under his control as our opposite number within the international system. So the real issue becomes, can the civil society/public good benefits of what Snowden did for America’s necessary conversation on the nature of its national security apparatus be outweighed by the harm he has committed by taking his information where it could be grasped by first the Chinese and then the Russians and used by them to their own purposes and advantage. Purposes, which are clearly not in the best interest of America or Americans.

    And I’ll leave it at that.

  17. 17.

    burnspbesq

    Hero and felon are not mutually exclusive. His service to the country can be taken into account at sentencing.

  18. 18.

    Dadadadadadada

    I’ll repeat myself from earlier today: Snowden is the greatest American hero of this century. We owe him 1) an unconditional pardon for any “wrongdoing” he can be accused of, 2) a 1st-class ticket home, 3) a Medal of Honor (or civilian equivalent), 4) a full set of veteran’s benefits (full-salary pension, medical, the works) for life. It’s the least we can do.

  20. 20.

    Ella in New Mexico

    Now HERE’s a topic that’s worthy of a 500+ comment thread.

    And I agree, he’s an American hero.

  21. 21.

    sigaba

    @Dadadadadadada: You do all that, and next thing you know, some “principled American patriot” in the State Department will use strategic leaks to blow up a peace agreement or treaty.

    Leakers only let you see what they want you to see, and they leak for their own reasons.

  22. 22.

    I'mNotSureWhoIWantToBeYet

    Oh, and just to close the link, here’s what the 2nd Circuit court did in October of last year:

    The U.S. Court of Appeals for the Second Circuit has issued a new opinion declining to reach the Fourth Amendment issues raised by the Section 215 bulk telephony metadata program that is being phased out under the USA Freedom Act. Recall that the Second Circuit had earlier ruled the program unlawful on statutory grounds but did not enjoin it. The Second Circuit’s decision helped lead to statutory reform with a transition period from the old program to a new more limited program. With the statute changed, the challengers moved to enjoin the old program during the remainder of the transition period. The new decision declines to issue the injunction and refuses to reach the Fourth Amendment issues raised by the old program.

    From the opinion:

    The question posed by Appellants invokes one of the most difficult issues of modern jurisprudence: whether modern technology changes traditional and reasonable expectations of privacy. The Fourth Amendment issue raised here, as we noted earlier, is a “dispute [that] touches an issue on which the Supreme Court’s jurisprudence is in some turmoil.” Whatever we might ultimately conclude about the Constitution’s demands in such a novel and contentious area, it is, at a minimum, difficult to conclude that Appellants are “likely to succeed” in arguing that new conditions require a reconsideration of the reach of a long‐established precedent.

    The government urges us not to reach these issues, because we should respect the judgment of the democratically elected branches of government to dismantle the program in a way that heeds national security concerns. We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless.

    Over at Just Security, Steve Vladeck calls this refusal to answer the question “wrong-headed” and “nothing short of feckless.” I disagree.

    First, I take the court to be saying that if it tried to answer the constitutional question, the program would end and the question would be moot before it issued the opinion. It’s better to announce now that the judges are not enjoining the program rather than to waste a month trying to beat the clock knowing that they couldn’t make the deadline. And even if the issue weren’t moot by the time the circuit ruled, the Supreme Court wouldn’t review it on the merits because the program would have ended. Instead, the losing party presumably would go to the Supreme Court and try to get it vacated under Munsingwear, undoing whatever work the Second Circuit put in.

    Second, it seems to me that this new opinion is a companion of sorts to the earlier decision ruling the program unlawful. The two opinions go together. Many civil libertarians celebrated the Second Circuit’s pragmatic, politically savvy, let’s-do-what-we-can-to-get-Congress-to-act moves in the first opinion. If you liked that opinion, it’s a little hard to object to the Second Circuit’s pragmatic, politically savvy, we-got-Congress-to-act-on-this-so-we’re-done moves in the second opinion.

    Finally, I have to pat myself on the cyber-back for predicting (here and here) that the constitutional issues raised by the telephony metadata program were not headed quickly to the Supreme Court. Justices Antonin Scalia and Ruth Bader Ginsburg suggested last year that the Court would have to answer how the Fourth Amendment applies. It might happen eventually. But at least so far, the circuit court cases on this have ended not with a bang but a whimper.

    FWIW.

    Cheers,
    Scott.

  23. 23.

    joel hanes

    @MattF:

    our monkey brains just can’t deal with more than one level of ‘not’s.

    Only those who have read an insufficient number of Edwardian and Victorian novels of manners can lack the ability to deal with nearly infinite levels of negation, each flipping the sense of the sentence in turn.

    In the Russian language, any number of negations have the same sense as one negation.
    Ya nichevo ne znaiyu. “I don’t know nothing” == I don’t know anything.

  24. 24.

    MattF

    @sigaba: The original sentence (before JC corrected it) read ‘Those who attack Snowden fail to miss the fact that…’. I don’t see how that would work correctly in a different language– but I guess I could be wrong.

  26. 26.

    shomi

    Wrong way Cole going the wrong way as usual. People like him would also be the first to say “why couldn’t they catch these people before they blew up the building/plane/whatever.”

    Also wtf does the traitor and criminal Snowden have to do with it? They were having these debates before any of his stuff.

  27. 27.

    Punchy

    @Adam L Silverman: So is this lower court actually going to attempt to do anything, or just issue extension after extension until Senator McJowels decides he wants a 9th justice? IOW, do they have to pretend to be doing jurisprudence, or can they very overtly just file it under “do not open until 2017”?

  28. 28.

    Dadadadadadada

    @Adam L Silverman: The fact that he chose to flee might reflect poorly on his character, but might it not also reflect poorly on the US justice system? We do have a rather poor recent history (especially in national-security-type cases) of abusing prisoners (Gitmo, black sites), holding them for illegally long times without charges or hearings (Jose Padilla, a US citizen captured and held on US soil), and that sort of thing. Why would Snowden expect to be treated any better?

  29. 29.

    Shawn in ShowMe

    Bernie campaigns in an abrasive manner and Cole wants him to go away. Snowden damn near commits treason and Cole wants him to come back. You gotta love politics.

  30. 30.

    Dadadadadadada

    @sigaba: Snowden’s reasons, by all indications, were that the government was illegally invading the privacy of millions of citizens. I welcome any leaks from anyone whose reasons are that noble and fact-based. Should anyone leak anything for less-noble or less-fact-based reasons, by all means, fry that person. But let’s not punish Snowden for doing exactly the right thing, because he deserves a free pass. And let’s not give that same free pass to anyone who doesn’t deserve it. Surely we can tell the difference?

  31. 31.

    Dadadadadadada

    @shomi: “His stuff” shed an enormous amount of light on the debate in re: the specifics of exactly what the government was doing to us. Pre-Snowden, there was plenty of reason to vaguely mistrust the NSA et al, but little in the way of hard facts tying them to specific illegal activities.

  32. 32.

    ? Martin

    Those who attack Snowden miss the fact that had he not done what he had done, the courts wouldn’t even have the capability to know what the government was doing in order to judge the legality.

    Fair point, but there are times that seems like almost an accidental outcome. Yes, Snowden warned about that, but he also warned that the intelligence agencies had direct access to our cloud accounts, which has been both widely denied and there’s increasing evidence that its false (based on the volume of effort going into getting the thing that Snowden claimed was being willfully offered up years ago). There have been constantly releases of names of intelligence agents names from those leaks, which presumably wasn’t his objection, but he still grabbed and released that information.

    Look, you could wipe out ISIS by nuking Syria. At the end the day you could say ‘see, they’re all gone now’ simply by ignoring all of the innocent people you killed. So sure, give him a medal for metadata but chuck him in prison forever for leaking the names of covert agents. My problem with Snowden isn’t that he was right about metadata, it’s that he was wrong and damaging about a pile of other things. He’s claimed that the NSA can hack your iPhone while it’s off. They can’t. He’s claimed that the FBI could easily break into the iPhone:

    The FBI can simply remove this chip from the circuit board (“desolder” it), connect it to a device capable of reading and writing NAND flash, and copy all of its data. It can then replace the chip, and start testing passcodes. If it turns out that the auto-erase feature is on, and the Effaceable Storage gets erased, they can remove the chip, copy the original information back in, and replace it. If they plan to do this many times, they can attach a “test socket” to the circuit board that makes it easy and fast to do this kind of chip swapping.

    The RAM is packaged with the CPU. It’s not on the circuit board and it can’t be desoldered. And how fast can you do the chip swapping? Once per few seconds? The FBI was asking to remove the 80 milisecond delay in order to speed up the effort. A 5 second try/swap would require months of constant attack before you were likely to get a result. That’s far from an easy solution as Snowden claimed.

    Snowden is full of shit. He’s nerdy Donald Trump. That doesn’t mean he can’t be right and it doesn’t mean he can’t have good intentions, but he gets so many things wrong along the way that it’s hard to reward the guy for making cookies while destroying the kitchen.

  34. 34.

    shomi

    @Dadadadadadada: Yawn…the metadata thing, which is specifically what this is about, was already public knowledge. Your are wasting my time just by having me respond to your fact free argument.

  35. 35.

    I'mNotSureWhoIWantToBeYet

    @? Martin: He lost me when he said (in the SCMP interview) that he could read the President’s email. And he made $200k a year. And Hong Kong was a bastion of freedom. And he wasn’t trying to hide from justice. And so forth.

    He’s a narcissist. He was talking about things that he had no possible way of knowing and understanding. (There’s this thing called “need to know”.)

    He should come home and face trial, if he really wants to convince me that he’s a “whistle blower”. If he’s convicted, he’ll be out in 30 years just like Pollard, Ames, and all the rest.

    Cheers,
    Scott.

  36. 36.

    ruemara

    Hero, to you. Wasn’t a hero or that much of a factor, last year; still isn’t now.

  37. 37.

    Denali

    I believe Mr. Snowden was planning to go to Equador before his passport was revoked. I think he is a very brave man who has done a tremendous service to his country. I hope he will be allowed to come home and receive fair treatment someday.

  38. 38.

    Adam L Silverman

    @Punchy: Its actually six different lower courts. Five ruled in favor of the government, one against. That’s why the Supreme Court originally took the case – a circuit split, so they had to provide clarification. I think the lower courts will go through the motions, which will take time. While that’s happening, the contraception rule will be put in place for religious non-profits, which makes it that much harder to overturn as the Supreme Court is then taking something away. Either a workaround will emerge in the lower courts or we’ll once again wind up with a split and it will, eventually, go back before the Supreme Court.

  39. 39.

    Adam L Silverman

    @Dadadadadadada: While it definitely goes to character, and yes, there is no doubt that our criminal justice system has had significant issues over the past 15 years dealing with related issues, I have a hard time lionizing someone who, to use the phrase, insisted on having his cake and eating it too. I have a hard time ascribing the appellation of hero to anyone who decides that 1) I have to do this, my conscience requires it of me as a person of integrity and 2) but I’m only doing it if I can get to some place where I don’t have to stand up for my convictions and face minimal consequences, all while providing largely BS commentary from that safehold and the fact that the safeholds chosen deliver all of this information directly into the hands of competitors.

  42. 42.

    The Sheriff's A Ni-

    Snowden is America’s greatest hero since sainted Mumia himself.

  43. 43.

    Steve in the ATL

    @Adam L Silverman:

    I think there are two distinctly different issues here. The first is that the conversation that his actions generated are a necessary, if not a good, one for Americans to have in regard to how our government functions, especially in regard to its security functions. The second, however, is that this was clearly the wrong way to do this. It would have been one thing to have done what Mr. Snowden did and not fled first to the Chinese (a competitor attempting to achieve peer status) and then to the Russians (a competitor attempting to re-achieve peer status). While some of the best advice I ever heard given to an audience of American national security professionals is that “China only has to become an enemy if we make it one”, I am much less sanguine about Russia under the leadership of Mr. Putin. He clearly and unequivocally has established himself and Russia under his control as our opposite number within the international system. So the real issue becomes, can the civil society/public good benefits of what Snowden did for America’s necessary conversation on the nature of its national security apparatus be outweighed by the harm he has committed by taking his information where it could be grasped by first the Chinese and then the Russians and used by them to their own purposes and advantage. Purposes, which are clearly not in the best interest of America or Americans.

    Very well articulated

  46. 46.

    Miss Bianca

    @Dadadadadadada: @Denali: You know,a guy who decides he’s going to point out the dangers of the National Forest Service’s fire suppression policies by burning down the forest is not a hero to me. Maybe he’s performed a “necessary service”, and maybe it will lead to positive policy changes down the line, but he’s still an arsonist who’s recklessly endangered human life, animal life, and property, and I don’t care what his high and noble principles were. And if he flees over the border to escape prosecution for his act, I don’t consider it justified because he’s afraid of what kind of treatment he’s likely to receive.

  47. 47.

    J R in WV

    @srv:

    Who are you talking about? “that woman” is condescending, arrogant, and information free.

  48. 48.

    OzarkHillbilly

    @Adam L Silverman: No, you had already said as much. ;-) just pointing out that he is a lawyer so his word carries far more weight than any analysis I might give of his read on it, which by the way, closely aligns with your own. .

  49. 49.

    Ramiah Ariya

    The truth is if Snowden’s leaks had been done under a Republican president (imagine Bush or Trump) there would be no question that he would be treated as a hero by Democrats. Once a Democrat stepped into the White House, government suddenly became magically trusted; and the benefit of doubt transferred to that government by most loyal Democrats, who now use the same tactics on Snowden that they used to accuse as countertop inspection. The rest of the world has good reason to thank Snowden. The Democratic position on Snowden mirrors their sudden love of drone warfare under Obama’s watch.

  50. 50.

    I'mNotSureWhoIWantToBeYet

    @Gin & Tonic: Correction noted. Ames can’t get parole as he was sentenced before the law was changed. Others, though, do after 30 years (Pollard being the most recent example), and Snowden would as well under those laws (unless things have changed).

    Thanks.

    Cheers,
    Scott.

  53. 53.

    burnspbesq

    AFAIK, the case is still pending in the District Court, on remand from the Second Circuit. So this is a useful reminder

  54. 54.

    Dmbeaster

    Will we ever know whether or not Snowden’s information was actually obtained by the Chinese or Russians? The intelligence agencies are going to claim this whether or not it is true, and probably have to assume the Chinese and Russians got it whether they know that or not. Snowden claims they did not get the info, but how can that assessment be meaningfully evaluated? His actions were clearly criminal, and his revelations clearly an important act of whistleblowing. Our national security cannot function if this scope of a leak is in any way allowable, but our democracy is also threatened by the government lying and illegal programs. Let me know when all these impossible to reconcile issues are sorted out.

  55. 55.

    Prescott Cactus

    Balloon Juice Worldwide stock is down 24% today. Trading halted.

    Tonight, Mac or Cheese because I can’t afford both.

  56. 56.

    sigaba

    @Dadadadadadada:

    I welcome any leaks from anyone whose reasons are that noble and fact-based. Should anyone leak anything for less-noble or less-fact-based reasons, by all means, fry that person.

    Sounds like a determination must be made on a case-by-case basis, like by a court or something.

  57. 57.

    polyorchnid octopunch

    We know of two people who’ve been driven either close to or completely insane by the people who have them incarcerated: Manning and Padilla. I can’t understand why Snowden would decide not to risk having that done to him.

  60. 60.

    SnowdenIsACoward

    @Bess: Other professionals at the NSA have blown the whistle and they accomplished a whole bunch more than putting the program they didn’t like on firmer legal footing as a public-private partnership. Snowden is such a hero while he cuts propaganda videos for Putin and disparages the American people by claiming he can’t get a fair trial.

    He’s a coward and a traitor.

  62. 62.

    polyorchnid octopunch

    @The Sheriff’s A Ni-: Yeah, and Snowden should clearly have decided to put himself on the rack to satisfy the Americanus Jingo.

    Both of those people were driven crazy ON PURPOSE. America is a torture state. I don’t blame him at all for bailing out on that.

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