A few weeks ago, HBO broadcast a roundly celebrated interview between comedian John Oliver and Edward Snowden, the former CIA contractor who became a controversial and world-famous figure after leaking an unknown number of secret U.S. government documents to the press. The interview was funny and wide-ranging, but the overall gist of Oliver's questions cum critiques was that the Snowden revelations may be historical but have failed to trickle down to the general public. Oliver's question to Snowden was, rather ironically, whether he was sure anyone was even listening.
Snowden held his own in the Q&A, but now that the United States Court of Appeals for the 2nd Circuit has delivered a watershed ruling finding a key part of the Patriot Act not only unconstitutional but also illegal, one wonders if Snowden doesn't wish the interview had been conducted just a few weeks later. Because while John Q. Public may still not have much of an idea of what "bulk collection" or "metadata" means, it's clear that people in power — both in Congress and on the bench — are paying attention, and many of them have found Snowden's revelations just as disturbing as he.
Recently, Salon spoke about the ruling over the phone with American University Washington College of Law Professor Stephen Vladeck, an expert on the law who focuses on issues involving national security, counterterrorism, the separation of powers and spying. In addition to discussing how the ruling affects Snowden's legacy, our conversation also touched on the 2nd Circuit's findings, the NSA reform movement and the likely near-future of the debate over privacy and mass surveillance. Our chat is below and has been edited for clarity and length.
How important is this ruling, really?
I think it’s important in a couple of different respects. I think one of the biggest reasons why it’s important is because up until this point, the phone records program had been repeatedly approved by the super-secret, one-sided Foreign Intelligence Surveillance Court (FISA). Now for the first time, adversarial litigation has prompted the courts to consider very carefully whether Congress really did mean back in 2001 to authorize such a sweeping collection of phone records; and the court unanimously says no. That’s a very big statement, and it's very important. What happens going forward I think now depends on what Congress does in response.
Why is it that Congress is in the mix here? Why aren't we going straight to the Supreme Court as the next step?
Usually when the government loses a case like this, we would all assume that its next step would be to take the case to the Supreme Court. They may still try to do that, but what makes this program and this decision unique is that the statute that the government says authorizes the program is set to expire on June 1, which is well before the government would have time to go to the Supreme Court. As a result, the government really has to make the case to Congress not only that it should pass some kind of statute allowing the phone records program to continue, but — especially after and in light of the 2nd Circuit’s decision — that it should authorize the kind of program that the 2nd Circuit held Congress had not authorized in 2001, when the Patriot Act was initially written, or when it was reauthorized in 2011.
What part of the reform argument is stronger as a result of this ruling than it was before?
First, I'm going to step back for a second: The problem with the phone records program is that it was predicated on an incredibly broad definition of the word “relevant.” The government basically took the position that because virtually all Americans phone records could be relevant to a terrorist investigation in a hypothetical, future case, it was therefore appropriate to collect them all now. In essence the government argued they needed the haystack in order to find the needle.
Well, the problem with that argument is that it assumes, first of all, that we know what the needle looks like; and, second of all, that the needle’s in the haystack to begin with. That’s a large part of why the 2nd Circuit said Congress could not have meant in 2001 that any record — produced by any company for any purpose at any time — could possibly be what the statute means by “relevant.”
And that impacts the reform argument how?
The first important consequence is that the decision will embolden efforts to require the government to have a much more specific argument for why they need certain [records].
The second impact is going to be more procedural. One of the concerns that had been raised about the phone records program is that it was approved entirely in secret, and through entirely one-sided litigation before the FISA Courts — that’s why a number of outside groups of advocates ... had pushed for the idea of a “special advocate,” of some kind of designated lawyer who would show up and argue against the government before the FISA courts. That proposal received a large boost in the 2nd Circuit’s ruling.
Is there a reform idea on the table — or near it — that might get a new burst of momentum as a result of this ruling?
Time will tell, but if I were speculating I’d have to say that I think the one real consequence from the 2nd Circuit’s decision is that it’s going to be that much harder for people like Sen. McConnell to sell a stopgap measure, to sell some kind of short-term extension, authorization, or reauthorization, because the whole point of the 2nd Circuit’s decision is that Congress had never authorized this program in the first place. It’s going to be very hard for McConnell to sell any of his colleagues on the notion that they can continue the status quo — because the 2nd Circuit decision fundamentally upsets that status quo.
As for whether that means we’re going to get more reform, and a more sort of rigorous reforms that we might otherwise have gotten, I guess that depends a lot on the libertarian cohort within the Republican Party and how much they want to push for that. I do think that there’s already at least one reform bill making its way through ... I don’t think it goes nearly as far as I and a number of privacy and civil liberties groups would like, but it’s an important step forward.
Does this ruling strengthen the argument of those who'd say Edward Snowden is best understood as a whistle-blower, rather than a traitor?
The question is whether we’re trying to assess Edward Snowden as a matter of law or whether we are trying to asses Edward Snowden as a matter morality and ethics. As a legal matter, I don’t think that the 2nd Circuit decision changes anything. It’s still the case that Snowden, without authorization, disclosed details on highly classified national security programs — so it’s still the case that he probably violated the Federal Espionage Act, and that his disclosures were not protected by federal whistle-blower laws. So legally, I don’t think it has an impact.
But practically, I think it does. Politically, it makes a huge difference that at least some, if not much, of what Snowden disclosed has now been held to be illegal, because I think we can all understand a lot better why someone in Snowden’s position would want to reveal the details of illegal government programs, as compared to just programs he doesn’t like or disagrees with. So I think [the ruling] will have a huge impact on ... how successive generations will look back at and understand Snowden.
What are you going to be paying the most attention to in the weeks and months to come?
This may be a bit of a frustrating answer, but I actually think that all of this focus on the phone records program is really, really unfortunate.
That is to say, the phone records program — for the reasons that are both obvious and otherwise — has received the lion's share of the attention in U.S. popular discourse ... but in comparison to the phone records program, the kinds of information the government is collecting under its other surveillance authorities — especially under the FISA Amendment Act of 2008 and through the so-called upstream collection program — is much more invasive and represents such a more fundamental invasion of American’s privacy rights. Yet we pay so much less attention to it.
If there’s one thing that I hope comes out of this — and that I hope folks will pay attention to going forward — it's that the phone records program is the tip of a very large iceberg; and, in many ways, it is the least offensive piece of this whole conversation. Just because the reform effort in Congress might actually be successful does not mean that the kinds of concerns Snowden raised and that the kinds of abuses we should all be worried about have abated. If anything, it just makes it that much more important that we understand what else the government is doing in our name.