U.S. Appeals Court Rules Mass Surveillance Illegal, as Binney Presses on Unconstitutionality

Sept. 3, 2020 (EIRNS)—A three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled yesterday that the NSA’s mass telephone surveillance operation violated the Foreign Intelligence Surveillance Act and was illegal. The decision repeatedly cited Edward Snowden’s exposure of this illegal program, and ruled that after having reviewed classified documents presented by the government, they concluded that U.S. intelligence officials’ justification of the program as having helped block terrorism, were not true; i.e., that they lied. The panel acknowledged that the “24-hour surveillance” under the NSA program was probably unconstitutional, violating the Fourth Amendment, but wrote that because a ruling on its constitutionality was not material to the specific case being appealed, the Court did not take that up. The judges chose, in other words, to not “go there.”

Coming only a few weeks after President Donald Trump mooted the possibility of pardoning Snowden, the court ruling ups the heat on that front. Citing the decision, Republican Rep. Matt Gaetz joined the call for President Trump to pardon Snowden. Sen. Rand Paul re-tweeted Gaetz’s call, adding: “This is important. @Snowden exposed illegal and unconstitutional actions by the Deep State, including Clapper and others who went after @realDonaldTrump and lied about it.”

Snowden was ecstatic. “Seven years ago, as the news declared I was being charged as a criminal for speaking the truth, I never imagined that I would live to see our courts condemn the NSA’s activities as unlawful and in the same ruling credit me for exposing them. And yet that day has arrived,” he responded in one of many tweets.

Likewise, NSA whistleblower Thomas Drake, another who faced prosecution for his opposition, tweeted that “9th Circuit declares NSA program unlawful as intel officials misled, lied & covered up NSA’s bulk call record collection (err, mass surveillance) as NatSecState secret. Some of us charged like spies w/ Crimes against the State for exposing this spying post 9/11.”

The country’s leading NSA whistleblower, Bill Binney, former NSA technical director, pointed out on the Jimmy Dore Show last night, that the Ninth Circuit is the second U.S. Appeals Court to have found the mass surveillance program illegal, and “probably” unconstitutional; the Second Circuit had also in 2013. Binney—who will address the Schiller Institute’s Sept. 5-6 international video conference, along with several fellow whistleblowers—insisted to Dore that the courts must rule the flagrantly “un-American” mass surveillance program unconstitutional.

To force that issue, Binney has filed a case before the Supreme Court to that effect. The status of the case will be decided when the Supreme Court begins its review of what cases it will hear in 2021 on Sept. 29, Binney said. The government did not contest anything we said in our petition, he reported, probably because they did not want to open the door for us to answer, instead counting on the Supreme Court to not take up the case. He warned that if the Supreme Court does not agree to hear the case, they will be protecting the unconstitutional program and law under which mass warrantless surveillance is carried out.