….The panel rejected the government’s argument that the ACLU lacked standing because it couldn’t prove that any one person’s records, sitting in a searchable database, had been reviewed by government officials. But whether it’s a machine or a person doing the searching doesn’t matter, Lynch wrote:
[T]he government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.
This could become an important precedent in a legal review of the NSA’s ability to automatically turn voice into text, which I disclosed on Tuesday, based on more documents from the Snowden archive.
The court’s rebuttal of the government’s argument that Congress wanted bulk collection kept secret from the public is quietly blistering:
The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information.
The court did not officially rule on whether the program is unconstitutional, because it ruled it illegal on a statutory basis. But, Lynch wrote: “The seriousness of the constitutional concerns, however, has some bearing on what we hold today, and on the consequences of that holding.”
The primary author of the Patriot Act, Rep. Jim Sensenbrenner, R-Wisc., has said that neither he nor anyone else imagined the law would be used for bulk domestic surveillance. “How can every call that every American makes or receives be relevant to a specific investigation?” Sensenbrenner asked, shortly after Snowden revealed the program.
And as Lynch wrote in the opinion: “Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.”
In a concurring opinion, Judge Robert D. 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
(full article by Dan Froomkin on The Intercept, here)
As Americans wait for Congress to decide next month whether to renew the Patriot Act and the vast NSA metadata surveillance program it’s made possible, a panel of three appellate judges has made the decision on its own: The Patriot Act, they’ve now ruled, was never written to authorize the sort of sweeping surveillance the NSA interpreted it to allow.
The United States Court of Appeals for the Second Circuit ruled on Thursday that the bulk collection of Americans’ phone metadata by the NSA wasn’t in fact authorized by section 215 of the Patriot Act, as the intelligence community has argued since the program was first revealed in the leaks of Edward Snowden two years ago. The ruling doesn’t immediately halt the domestic phone records surveillance program. But if it’s not overturned by a higher court it could signal the program’s end—and it at least forces Congress to choose whether it wishes to explicitly authorize the program when the Patriot Act comes up for renewal on June 1st.
“We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” the ruling reads. “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.”
The ruling comes as the latest surprise development in a lawsuit from the American Civil Liberties Union against the Office of the Director of National Intelligence that immediately followed Edward Snowden’s revelations of the NSA’s mass domestic surveillance under the 215 section’s purported authorization. The lawsuit had been dismissed by a lower court in 2013, but the three appellate judges overruled decision.
Since it was first revealed, the 215 metadata surveillance program has been under attack from privacy advocates, and even the White House has said it’s exploring alternatives to the current system of collecting every American’s phone records. In a statement responding to the ruling, a spokesperson for the National Security Council writes that it’s already looking at a replacement for the program. “The President has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program’s essential capabilities without the government holding the bulk data,” writes the NSC’s assistant press secretary Ned Price. “We continue to work closely with members of Congress from both parties to do just that.”
But the new court ruling will nonetheless have real significance for Congress’s upcoming decision as to whether and how to reform the Patriot Act. A reform bill known as the USA Freedom Act, which would limit the 215 metadata collection, has advanced in the House. But that bill has been opposed by Republicans.
Now, says Cato Institute privacy researcher Julian Sanchez, reform is almost inevitable. “This changes the calculus. You now have a federal appellate court saying that the statute in its current form does not authorize this program. If the program needs to continue, it may not be allowed under a straight reauthorization,” Sanchez says. “If your goal is to preserve this program, reform becomes the surest way to preserve some version of it.”
(Full article by Andy Greenberg at Wired)
U.S. intelligence veterans recall the real story of how New York Times reporter Judith Miller disgraced herself and her profession by helping to mislead Americans into the disastrous war in Iraq. They challenge the slick, self-aggrandizing rewrite of history in her new memoir.
MEMORANDUM FOR: Americans Malnourished on the Truth About Iraq
FROM: Veteran Intelligence Professionals for Sanity (VIPS)
SUBJECT: A New “Miller’s Tale” (with apologies to Geoffrey Chaucer)
On April 3, former New York Times journalist Judith Miller published an article in the Wall Street Journal entitled “The Iraq War and Stubborn Myths: Officials Didn’t Lie, and I Wasn’t Fed a Line.” If this sounds a bit defensive, Miller has tons to be defensive about.
“….Miller may not have singlehandedly taken America and the world to war, but she certainly played a pivotal role in building the public case for the attack on Iraq based upon shoddy reporting that even her editor at the New York Times has since discredited – including over reliance on a single-source of easy virtue and questionable credibility – Ahmed Chalabi of the Iraqi National Congress. The fact that she chose to keep this ‘source’ anonymous underscores the journalistic malfeasance at play in her reporting.
“Chalabi had been discredited by the State Department and CIA as a reliable source of information on Iraq long before Judith Miller started using him to underpin her front-page ‘scoops’ for the New York Times. She knew this, and yet chose to use him nonetheless, knowing that then Secretary of Defense Donald Rumsfeld was fully as eager to don the swindlers’ magic suit of clothes, as was the king in Hans Christian Anderson’s fairy tale. In Ms. Miller’s tale, the fairy-tale clothes came with a WMD label and no washing instructions.
“Ms. Miller’s self-described ‘newsworthy claims’ of pre-war weapons of mass destruction stories often were – as we now know (and many of us knew at the time) – handouts from the hawks in the Bush administration and fundamentally wrong.
“Like her early reporting on Iraq, Ms. Miller’s re-working of history to disguise her malfeasance/misfeasance as a reporter does not bear close scrutiny. Her errors of integrity are hers and hers alone, and will forever mar her reputation as a journalist, no matter how hard she tries to spin the facts and revise a history that is highly inconvenient to her. Of course, worst of all, her flaws were consequential – almost 4,500 U.S. troops and 1,000,000 Iraqis dead.”
(See full Consortiumnews article here.)
Sam Adams Associates for Integrity in Intelligence is a movement of former CIA colleagues of former intelligence analyst Sam Adams, together with others who hold up his example as a model for those in intelligence who would aspire to the courage to speak truth to power. SAAII confers an award each year to a member of the intelligence community or related professions who exemplifies Sam Adam’s courage, persistence, and devotion to truth – no matter the consequences. Read more about the history here.
The annual Sam Adams Award has been given in previous years to truth tellers Coleen Rowley of the FBI; Katharine Gun of British Intelligence; Sibel Edmonds of the FBI; Craig Murray, former UK ambassador to Uzbekistan; Sam Provance, former US Army Sgt; Maj. Frank Grevil of Danish Army Intelligence; Larry Wilkerson, Col., US Army (ret.), former chief of staff to Colin Powell at State; Julian Assange, of WikiLeaks: Thomas Drake, of NSA; Jesselyn Radack, formerly of Dept. of Justice and now National Security Director of Government Accountability Project; Thomas Fingar, former Deputy Director of National Intelligence and Director, National Intelligence Council, and Edward Snowden, former contractor for the National Security Agency; and Chelsea Manning, US Army Private who exposed (via WikiLeaks) key information on Afghanistan and Iraq, as well as State Department activities.