Tuesday, December 17, 2013
Edward Snowden Vindicated by Judge's Ruling That NSA Dragnet Program is Unconstitutional
"I have little doubt the author of our Constitution, James Madison, would be aghast"
"The government does not cite a single instance where the program actually stopped an imminent attack"
- Federal Circuit Judge Richard Leon ruling against NSA super dragnet spying yesterday.
Richard Leon is another hero and defender of the Constitution irrespective of whether or not his momentous ruling on the NSA monster spy programs are overturned on appeal. We know it only takes one voice, even in the minority, to espouse truth and constitutional principles even if liars, reprobates and traitors are arrayed against them - to the extent of re-doing earlier laws (like the 1978 Foreign Intelligence Surveillance Act) to render the illegal, legal.
Judge Leon, in a 68 -page ruling issued in Washington on Monday, argued that the bulk collection of Americans’ telephone records by the National Security Agency is likely to violate the US constitution, in the most significant legal setback for the agency since the publication of the first surveillance disclosures by whistleblower and constitutional hero, Edward Snowden.
Judge Leon declared that the mass collection of metadata probably violates the fourth amendment, which prohibits unreasonable searches and seizures, and was "almost Orwellian" in its scope. In a judgment replete with literary swipes against the NSA, he said James Madison, the architect of the US constitution, would be "aghast" at the scope of the agency’s collection of Americans' communications data.
You have nailed it, Judge Leon, and I already noted this in many previous posts. The 4th amendment is VERY clear that specific warrants must be issued, not mass warrants! I don't give a fuck how "inconvenient" it is or how long and arduous that process might be. Tough shit! Either adhere to the principles or admit you're traitors to your constitutional oaths. People can read the words of the Fourth for themselves below:
“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.”
Read it slowly and carefully, especially the emphasized portions over again. Clearly, the NSA MASS-grabbing of data violates directly the 4th amendment, and yeah, I'm as much a stickler about the 4th as the gun people are about the 2nd.
As I noted before, "secure in one’s person, house, papers, effects” implies PRIVACY! These are after all MY private papers, my private effects, my house, etc. If an inherent right to privacy was a myth then by all accounts being secure in one’s person, papers, effects wouldn’t matter. Hell, let the whole freakin’ world see ‘em! This is why in a fascist dictatorship “personal effects” don’t exist. “Personal papers” has no meaning. The state has full monopoly, de facto ownership on whatever the person has, even his own body. Hence, in fascist dictatorships, such as existed in Nazi Germany, all personal effects, papers could be seized by the Nazis on a whim or remote suspicion - under the Reich Laws. A fundamental right to privacy, meanwhile, insists there exist bona fide entities that one can uniquely own, e.g. papers, effects – including photos or what not- that are private. Without this fundamental right, then, “personal papers, effects” has no meaning hence the 4th amendment is meaningless.
It is clear to me that Judge Leon recognizes this, even if neoliberal coward and administration mouthpiece Jay Carney (calling for Snowden's return and prosecution) doesn't. Will Carney ever pull his head out of his ass? Probably never!
But what do you expect from Carney? The ruling, by the US district court for the District of Columbia, is a blow to the Obama administration, and sets up a legal battle that will drag on for months, almost certainly destined to end up in the Supreme Court. It was welcomed by campaigners pressing to rein in the NSA, and by Snowden, who issued a rare public statement saying it had vindicated his disclosures. It is also likely to influence other legal challenges to the NSA, currently working their way through federal courts.
Judge Leon expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. “The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack".
“Given the limited record before me at this point in the litigation – most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics – I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”
If such instances of actual success - based specifically on the dragnet programs - are not cited, then obviously we can't ascertain if the protection of the program is all based on some BS smokescreen or not. Telling us that to provide the information would "risk national security" is horse patootey and insults our intelligence. It also gives cover to the spooks to do whatever the hell they want.
Leon’s opinion also contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional. (Alexander, treating us all like untutored children or idiots insisted he saw no other way to do the collection other than by mass dragnet - as one cheeky Denver Post letter writer put it, he could as well "put us all in prison then he can see and hear what we're doing and when any time he wants.")
“Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,”
Leon also said that the mass collection of phone metadata, revealed by the Guardian in June, was "indiscriminate" and "arbitrary" in its scope. He also wrote:
"The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,"
Referring to the year in which the US Supreme Court ruled on a fourth amendment case upon which the NSA now relies to justify the bulk records program. But he also implied that the later revision of that law was the main outrage: since it was done after the Bushies perpetrated warrantless wiretaps after 2005. The pusillanimous punk traitor congress- instead of holding Bush to account and impeaching his sorry ass - let him get away with it by changing the 1978 FISA law to make mass warrantless wiretapping legal. It is amazing how few know about this and that all appeals to the later revised "law" are bogus.
Meanwhile, in a statement released subsequent to the ruling (related to Glenn Greenwald), Snowden said:
“I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
We can only hope and trust this is the case, and that if and when it ends up at the Supreme Court they will perform their constitutional duty irrespective of their ideology.
Lastly, I was delighted to see Colorado Senator Mark Udall, a leading critic of the dragnet collection, welcomed the judgment. In his words:
"The ruling underscores what I have argued for years: [that] the bulk collection of Americans' phone records conflicts with Americans' privacy rights under the US constitution and has failed to make us safer,"
Maybe one of these days, Mr. Obama - a constitutional scholar at one time - will begin to see that.