NSA surveillance program exposed by Snowden was illegal, court rules

NSA’s phone-tracking surveillance program exposed by Edward Snowden was ILLEGAL and did not help catch terrorists, court rules

  • A federal appeals court on Wednesday ruled that the NSA’s mass surveillance program collecting Americans’ phone records was illegal 
  • The program came to light in 2013 when NSA whistleblower Edward Snowden leaked classified documents about it to journalists
  • NSA officials claimed that the program was necessary to catch terrorists
  • But a judge determined that those claims were ‘inconsistent with the contents of the classified record’
  • Snowden praised the ruling on Twitter from Moscow, where he is living in exile while facing espionage charges in the US 

Seven years after former National Security Agency contractor Edward Snowden blew the whistle on the mass surveillance of Americans’ telephone records, an appeals court has found the program was unlawful – and that the US intelligence leaders who publicly defended it were not telling the truth.

In a ruling handed down on Wednesday, the US Court of Appeals for the Ninth Circuit said the warrantless telephone dragnet that secretly collected millions of Americans’ telephone records violated the Foreign Intelligence Surveillance Act and may well have been unconstitutional.

Snowden, who fled to Russia in the aftermath of the 2013 disclosures and still faces US espionage charges, said on Twitter that the ruling was a vindication of his decision to go public with evidence of the National Security Agency’s domestic eavesdropping operation.

‘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,’ Snowden tweeted.  

Seven years after former National Security Agency contractor Edward Snowden blew the whistle on the mass surveillance of Americans’ telephone records, an appeals court has found the program was unlawful – and that the US intelligence leaders who publicly defended it were not telling the truth (file photo)

Snowden, who fled to Russia in the aftermath of the 2013 disclosures and still faces US espionage charges, said on Twitter that the ruling was a vindication of his decision to go public with evidence of the National Security Agency’s domestic eavesdropping operation 

Evidence that the NSA was secretly building a vast database of US telephone records – the who, the how, the when, and the where of millions of mobile calls – was the first and arguably the most explosive of the Snowden revelations published by the Guardian newspaper in 2013.

Up until that moment, top intelligence officials publicly insisted the NSA never knowingly collected information on Americans at all. 

After the program’s exposure, US officials fell back on the argument that the spying had played a crucial role in fighting domestic extremism, citing in particular the case of four San Diego residents who were accused of providing aid to religious fanatics in Somalia.

US officials insisted that the four – Basaaly Saeed Moalin, Ahmed Nasir Taalil Mohamud, Mohamed Mohamud, and Issa Doreh – were convicted in 2013 thanks to the NSA’s telephone record spying, but the Ninth Circuit ruled Wednesday that those claims were ‘inconsistent with the contents of the classified record’. 

The ruling will not affect the convictions of Moalin and his fellow defendants; the court ruled the illegal surveillance did not taint the evidence introduced at their trial. 

Nevertheless, watchdog groups including the American Civil Liberties Union, which helped bring the case to appeal, welcomed the judges’ verdict on the NSA’s spy program.

‘Today’s ruling is a victory for our privacy rights,’ the ACLU said in a statement, saying it ‘makes plain that the NSA’s bulk collection of Americans’ phone records violated the Constitution’.

Snowden reacted to the judge’s ruling in a tweet on Wednesday (pictured)

Watchdog groups including the American Civil Liberties Union, which helped bring the case to appeal, welcomed the judges’ verdict on the NSA’s spy program

The NSA discontinued its program for collecting metadata in bulk in 2015 after Congress passed the USA Freedom Act. 

Under that law, bulk phone records could only be accessed by investigators with a judge’s permission.  

The NSA reportedly shut down its phone program entirely in 2018.  

In her ruling, Judge Martha Berzon repeatedly mentioned Snowden’s role in exposing the NSA practices by sharing thousands of classified documents about US surveillance programs in 2013.

It’s unclear whether the ruling will influence Snowden’s chances at receiving a pardon, which President Donald Trump indicated he was considering last month.  

‘There are many, many people – it seems to be a split decision that many people think that he should be somehow treated differently, and other people think he did very bad things,’ Trump said of Snowden at a news conference on August 15. ‘And I’m going to take a very good look at it.’

Snowden lives in exile in Moscow and is campaigning aggressively for a pardon – which he sees as the only way to return to the US without going straight to prison. He is seen speaking at a technology event via video from Russia in April 2019

It’s unclear whether the ruling will influence Snowden’s chances at receiving a pardon, which President Donald Trump indicated he was considering last month 

But days later, Attorney General William Barr came out to say he is ‘vehemently opposed’ to any attempt to pardon Snowden.  

‘He was a traitor and the information he provided our adversaries greatly hurt the safety of the American people,’ Barr told the Associated Press. ‘He was peddling it around like a commercial merchant. We can’t tolerate that.’

Snowden remains in Russia to avoid prosecution even as the federal charges against him are pending.

Last year, Snowden said his ‘ultimate goal’ was to return home to the US.

Though he said any such return would be dependent on the US government offering him a fair trial, something he says officials have ‘refused to guarantee’.

‘But if I’m gonna spend the rest of my life in prison, the one bottom line demand that we have to agree to is that at least I get a fair trial.’

Snowden said a fair trial won’t be possible as the government won’t allow him to take a public interest defense.

‘I’m not asking for a parade. I’m not asking for a pardon. I’m not asking for a pass. What I’m asking for is a fair trial,’ he said. 

Critics have repeatedly reminded him that by leaking the classified documents he broke both federal law and the oath he took when he joined the NSA.  

Attorney General William Barr said he is ‘vehemently opposed’ to a pardon for Snowden

It was unclear how serious Trump was, particularly given that years earlier he had denounced Snowden as a spy deserving of execution. 

But Trump’s distrust of his own intelligence community has been a staple of his tenure, particularly because of its conclusion that Russia intervened in the 2016 presidential election on his behalf, and he has at times bemoaned the broad surveillance powers that the intelligence agencies have at their disposal.

Any effort to pardon Snowden would unquestionably infuriate senior intelligence officials, who say his disclosures caused extraordinary damage and will have repercussions for years to come.

In a memoir published last year, Snowden wrote that his seven years working for the NSA and CIA led him to conclude that the US intelligence community had ‘hacked the Constitution’ and put everyone’s liberty at risk and that he had no choice but to turn to journalists to reveal it to the world.

‘I realized that I was crazy to have imagined that the Supreme Court, or Congress, or President Obama, seeking to distance his administration from President George W. Bush’s, would ever hold the [intelligence community] legally responsible – for anything,’ he wrote in his book Permanent Record.   

The day after its publication, the US Department of Justice filed a two-count civil lawsuit against Snowden ‘alleging he had breached nondisclosure agreements signed with the U.S. federal government’. 

‘PERMANENT RECORD’: SNOWDEN EXPLAINS HIS DECISION TO LEAK NSA DOCUMENTS

Edward Snowden’s book, Permanent Record, was released last year. 

It offers by far the most expansive and personal account of how Snowden turned from obscure NSA worker to whisleblower, a move which set off a national debate about the extent of government surveillance by intelligence agencies desperate to avoid a repeat of the September 11 attacks. 

Intelligence officials who conduct annual classified assessments of damage from Snowden’s disclosures have said the documents will continue trickling out into the public domain for years to come.

Though the book comes six years after the disclosures, Snowden, who fled first to Hong Kong and then Russia, attempts in his memoir to place his concerns in a contemporary context. 

 ‘What is real is being purposely conflated with what is fake, through technologies that are capable of scaling that conflation into unprecedented global confusion,’ he says.

The story traces Snowden’s evolution from childhood, from growing up in the 1980s in North Carolina and suburban Washington, where his mother worked as a clerk at the NSA and his father served in the Coast Guard.

He came of age as the Internet evolved from an obscure government computer network and describes how a youthful fascination with technology – as a child, he took apart and reassembled a Nintendo console and, as a teenager, hacked the Los Alamos nuclear laboratory network – eventually led him to a career as an NSA contractor, where he observed high-tech spy powers with increasing revulsion.

Analysts used the government’s collection powers to read the emails of current and former lovers and stalk them online, he writes.

One particular program the NSA called XKEYSCORE allowed the government to scour the recent Internet history of average Americans. 

He says he learned through that program that nearly everyone who’s been online has at least two things in common: They’ve all watched pornography at one time or another, and they’ve all stored videos and pictures of their family.

‘This was true,’ he writes, ‘for virtually everyone of every gender, ethnicity, race, and age – from the meanest terrorist to the nicest senior citizen, who might be the meanest terrorist’s grandparent, or parent, or cousin.’

He struggled to share his concerns with his girlfriend, who joined him in Russia and is now his wife.

‘I couldn’t tell her that my former co-workers at the NSA could target her for surveillance and read the love poems she texted me. I couldn’t tell her that they could access all the photos she took – not just the public photos, but the intimate ones,’ he writes. 

‘I couldn’t tell her that her information was being collected, that everyone’s information was being collected, which was tantamount to a government threat: If you ever get out of line, we’ll use your private life against you.’

Before summoning a small group of journalists to Hong Kong to disclose classified secrets, knowing that a return to the US was impossible, he says he prepared like a man about to die. He emptied his bank accounts, put cash into a steel ammo box for his girlfriend and erased and encrypted his old computers.

These days he remains outside the reach of a US Justice Department that brought Espionage Act charges just weeks after the disclosures. 

He spends many of his days behind a computer and participating in virtual meetings with fellow board members at the Freedom of the Press Foundation. ‘I beam myself onto stages around the world’ to discuss civil liberties, he writes.

When he does go out, he tries to shake up his appearance, sometimes wearing different glasses. He keeps his head down when he walks past buildings equipped with closed-circuit television. Once, he says, he was recognized in a Moscow museum and consented to a selfie request from a teenage girl speaking German-accented English. 

It’s unclear when or even if Snowden will return to a country where his family has deep roots. He traces his lineage back to the Mayflower and ancestors who fought in the Revolutionary War.

He was shaken by the September 11 attacks, but describes his ‘reflexive, unquestioning support’ for the wars that followed as the greatest regret of his life.

‘It was as if whatever institutional politics I’d developed had crashed – the anti-institutional hacker ethos instilled in me online, and the apolitical patriotism I’d inherited from my parents, both wiped from my system – and I’d been rebooted as a willing vehicle of vengeance.’

He describes the 18 years since the September 11 attacks as ‘a litany of American destruction by way of American self-destruction, with the promulgation of secret policies, secret laws, secret courts and secret wars’. 

Reporting by Ross Ibbetson for MailOnline

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