(Report below from Ray McGovern)
The occasion was the annual meeting of the Academy of Philosophy and Letters, June 13, 2015, at the BWI Doubletree Hotel — oddly, surrounded by NSA buildings in Linthicum, MD.
The evening program was hosted by John Henry, of the Committee for the Republic.
The topic was: “The National Security Agency’s War on the U.S. Constitution”
Speakers: William Binney, Kirk Wiebe, Thomas Drake, James Bamford, Bruce Fein, John Henry, and Ray McGovern
The Committee for the Republic was pleased to afford an appropriate occasion for William Binney to receive the framed citation (in English and German) for the Sam Adams Award for Integrity in Intelligence. The award was originally presented to Binney at an SRO ceremony in Berlin on January 22, 2015.
Ed Snowden, who was live-streamed into that Berlin ceremony, emphasized that “Without Bill Binney there would be no Ed Snowden.” Bill, in turn, had been greatly encouraged by the courageous, principled stand taken by Tom Drake in facing down the U.S. Department of Justice and NSA successfully, after four years of persecution that included government-provided “evidence” proven in Court to have been forged.
Actually, in a very real sense, it was a triple-play: Drake to Binney to Snowden. So it was altogether appropriate that Tom Drake be the Sam Adams Associate to present the framed award to Bill Binney on June 13, 2015 in the belly of the (NSA) beast.
Tom also had been the clear choice of his colleague Sam Adams Associates to present the 2013 award for integrity in intelligence to Ed Snowden in Moscow on October 7, 2013. As soon as Ed surfaced in Hong Kong, he made it clear that the U.S. government abuse of Tom had convinced Ed that he had to leave the U.S. in order to achieve his mission and have some chance — however slight it seemed at the time — of avoiding spending the rest of his life in prison.
Hats off to Drake to Binney to Snowden: courageous patriots all!
….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)
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.