SYNDICATED COLUMN: The NSA Loses in Court, but the Police State Rolls On

Edward Snowden has been vindicated.

This week marks the first time that a court – a real court, not a sick joke of a kangaroo tribunal like the FISA court, which approves every government request and never hears from opponents – has ruled on the legality of one of the NSA’s spying programs against the American people.

Verdict: privacy 1, police state 0.

Yet the police state goes on. Which is what happens in, you know, a police state. The pigs always win.

A unanimous three-judge ruling by the US Court of Appeals for the Second Circuit, in New York, states unequivocally that the Obama Administration’s interpretation of the USA Patriot Act is fatally flawed. Specifically, it says, Congress never intended for Section 215 to authorize the bulk interception and storage of telephony metadata of domestic phone calls: the calling number, the number called, the length of the call, the locations of both parties, and so on. In fact, the court noted, Congress never knew what the NSA was up to before Snowden spilled the beans.

On the surface, this is good news.

It will soon have been two years since Snowden leaked the NSA’s documents detailing numerous government efforts to sweep up every bit and byte of electronic communications that they possibly can — turning the United States into the Orwellian nightmare of 1984, where nothing is secret and everything can and will be used against you. Many Americans are already afraid to tell pollsters their opinions for fear of NSA eavesdropping.

One can only imagine how chilling the election of a neo-fascist right-winger (I’m talking to you, Ted Cruz and Scott Walker) as president would be. Not that I’m ready for Hillary “privacy for me, not for thee” Clinton to know all my secrets.

Until now, most action on the reform front has taken place abroad, especially in Europe, where concern about privacy online has led individuals as well as businesses to snub American Internet and technology companies, costing Silicon Valley billions of dollars, and accelerated construction of a European alternative to the American dominated “cloud.”

Here in the United States, the NSA continued with business as usual. As far as we know, the vast majority of the programs revealed by Snowden are still operational; there are no doubt many frightening new ones launched since 2013. Members of Congress were preparing to renew the disgusting Patriot Act this summer. One bright spot was the so-called USA Freedom Act, which purports to roll back bulk metadata collection, but privacy advocates say the legislation had been so watered down, and so tolerant of the NSA’s most excessive abuses, that it was just barely more than symbolic.

Like the Freedom Act, this ruling is largely symbolic.

The problem is, it’s not the last word. The federal government will certainly appeal to the U.S. Supreme Court, which could take years before hearing the case. Even in the short run, the court didn’t slap the NSA with an injunction to halt its illegal collection of Americans’ metadata.

What’s particularly distressing is the fact that the court’s complaint is about the interpretation of the Patriot Act rather than its constitutionality. The Obama Administration’s interpretation of Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” said the court ruling. However: “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.”

Well, ain’t that peachy.

As a rule, courts are reluctant to annul laws passed by the legislative branch of government on the grounds of unconstitutionality. In the case of NSA spying on us, however, the harm to American democracy and society is so extravagant, and the failure of the system of checks and balances to rein in the abuses so spectacular, that the patriotic and legal duty of every judge is to do whatever he can or she can to put an end to this bastard once and for all.

It’s a sad testimony to the cowardice, willful blindness and lack of urgency of the political classes that the New York court kicked the can down the road, rather than declare the NSA’s metadata collection program a clear violation of the Fourth Amendment’s right to be free from unreasonable search and seizure.

(Ted Rall, syndicated writer and the cartoonist for The Los Angeles Times, is the author of the new critically-acclaimed book “After We Kill You, We Will Welcome You Back As Honored Guests: Unembedded in Afghanistan.” Subscribe to Ted Rall at Beacon.)


11 thoughts on “SYNDICATED COLUMN: The NSA Loses in Court, but the Police State Rolls On

  1. > Congress never intended for Section 215 to authorize the bulk interception and storage of telephony metadata of domestic phone

    Well duh. They never intended that it would apply to them or the 1%

    But it just boggles the mind that anyone could possibly think this needs the Supreme Court to make a ruling, anyone with a sixth-grade reading comprehension level should be able to correctly parse, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    • It’s fascinating to me what an odd place we’re in. It seems the same sort of people who believe we’re free often believe the system doesn’t work for us. As you say, anyone can understand mass surveillance violates the highest law in the land. As I say, it’s an odd place: a court has to rule against it, but if it does, it can’t be allowed to stop it. So here we have it: a toothless ruling. Reminds me of Old Hickory refusing to enforce the ruling of the Supreme Court. Will the cognitive dissonance ever reach critical mass?

    • The act, as you quote, prohibits ‘unreasonable search’. After 9/11, the overwhelming majority of American voters agreed that complete, total Big Brother always-on CCTV from everywhere to the government watchers is absolutely necessary and reasonable if those voters are to feel safe from the terrorists.

      They know that millions of Iraqis, Afghanis, Pakistanis, and many other goatherds are lurking, ready to perpetrate an attack against which 9/11 would seem a trivial traffic problem. It was NOT 19 Saudis and four other Arab Wahabbis who perpetrated 9/11 and committed suicide in the process. Saudi Arabia is innocent. As Con Coughlin of the Telegraph assures us, the terrorists used fake passports and returned to heroes’ welcomes by the governments of Iraq, Iran, Afghanistan, Syria, and Libya. (The Pakistanis who took part were not supported by their own government, but by the many Pakistani criminal terrorists who are not in the government.) And we know this is true because we have confessions obtained using ‘enhanced interrogation’.

      The fact that there is absolutely no evidence for any of the above other than the confessions under ‘enhanced interrogation’ (that a few liberals reject as proof) is irrefutable proof of how clever and malevolent America’s enemies are, and is why the overwhelming majority of voters recognised that they needed the paternal Bush, jr watching over them 24/7/366. (NB. Republican voters did NOT extend permission to salaciously snoop on them to the Kenyan terrorist who managed to sneak into the Oval Office in ’09.)

  2. Almost nobody read the Patriot Act before they voted for it.

    So why bother with elections when a draft of regular citizens to populate the Congress couldn’t have done worse?

  3. Exactly Glenn – I agree. Even if someone were to pick up and run with this decision and demand that the NSA stop, I don’t believe for a minute they would. Big Money and the Military Industrial Complex – which I include the NSA in, have never shown any adherence to anything except what they want to do. They rely on the ‘regular citizens’ to act like the sheep they have chosen to be.

  4. Well, CrazyH is correct that it doesn’t’ take much thought to parse the fourth amendment, and Jack Heart is right that it goes back at least to Andrew Jackson, the first monstrous imperial president (and monster in general). Though honestly the imperial presidency goes back at least to Jefferson, who violated both the constitution and everything he claimed to believe in when he completed the Louisiana Purchase. Not to say when he owned slaves (well, the “everything he supposedly believed in part” since slavery was fine with the constitution).

  5. From what I’ve read, the ruling opens up the opportunity for anyone whose data was collected — not used, just collected — to sue the government. Where’s the sign-up sheet for that?

    • This goes back to another, breathtakingly Orwellian, case in which plaintiffs, of the sort you want to be, had their case thrown out of court because the collected data, defined as a state secret, could not be made public, therefore, the plaintiffs could not possibly show it in court, therefore could not prove they were spied upon and, thus, were ruled not to have legal standing to bring the case. (ref 114)

      The current ruling “did not come with any injunction ordering the program to cease,” and, while I have yet to see the full text of the ruling, I strongly doubt that it strikes down the “state secret” doctrine underlying the ruling described above in this comment.

      I would like there to be a “sign-up sheet,” I doubt this ruling makes it possible.