Edward Snowden hasn’t had his day in court, but he’s already finding some vindication in the U.S. judicial system.
A U.S. appeals court’s ruling on Thursday that bulk collection of telephone metadata by the National Security Agency is illegal has given fresh hope to supporters of the former government contractor, who say the judgment proves he was right to reveal the program.
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Stephen Kohn, executive director of the National Whistleblowers Center, said the ruling is “a vindication for Snowden and the importance of whistleblowing.”
“Maybe someone who reveals a secret program that multiple federal judges say is ILLEGAL is a whistleblower who deserves gratitude — not prison?” tweeted Glenn Greenwald, the journalist whom Snowden turned to to help him reveal the bulk collection program.
Still, it’s unlikely Snowden, who is living in Russia to avoid U.S. prosecution, will decide to buy a plane ticket home anytime soon, since the material he handed over to news organizations concerned many government programs, not just metadata collection.
“This ruling would not have been possible and would not have occurred if his disclosures had not taken place,” noted Steven Aftergood, a specialist on government secrecy. But it “doesn’t address the larger issues in the scope of all that he disclosed.”
There was no hint Thursday that the Obama administration had softened its stance toward Snowden.
“Mr. Snowden is accused of leaking classified information and faces felony charges here in the United States,” said Ned Price, a spokesman for the National Security Council. “He should return to the U.S. as soon as possible, where he will be accorded full due process and protections.”
The ruling came from a three-judge panel of the New York-based 2nd U.S. Circuit Court of Appeals. The judges decided that the NSA’s collection of information about billions of phone calls made or received by Americans was not allowed under an anti-terrorism law passed by Congress, but they did not rule on whether the program violated the Constitution.
The court’s main opinion, written by Judge Gerard Lynch and joined by Judges Robert Sack and Vernon Broderick, only briefly mentioned the young man now living in Moscow and considered a fugitive by the U.S.
“Americans first learned about the telephone metadata program that appellants now challenge on June 5, 2013, when the British newspaper The Guardian published a [Foreign Intelligence Surveillance Court] order leaked by former government contractor Edward Snowden,” Lynch’s opinion noted.
However, Sack penned a separate concurring opinion that dealt more directly with the implications of Snowden’s actions and painted him as part of a long American tradition of whistleblowing.
Sack — a former attorney for The Wall Street Journal — placed the term “leak” in quotes when discussing Snowden’s actions and referred to at least 40 news articles comparing Snowden to Daniel Ellsberg, the defense analyst who leaked the so-called Pentagon Papers about the Vietnam War to The New York Times and The Washington Post.
The judge also referred to an opinion he wrote nearly a decade ago in a separate case involving leaks to the Times.
“The use of the term ‘leak’ to identify unauthorized disclosures in this context may be unhelpful. It misleadingly suggests a system that is broken. Some unauthorized disclosures may be harmful indeed. But others likely contribute to the general welfare,” Sack wrote. “Secretive bureaucratic agencies, like hermetically sealed houses, often benefit from a breath of fresh air.”
Despite the comparisons, Sack insisted the court was not judging the merits of Snowden’s actions.
“Although the ‘leak’ led to this litigation, our decision is not about the Snowden disclosures themselves,” the Clinton-appointed judge said in a footnote.
Jesselyn Radack, a member of Snowden’s legal team, demurred when asked if his lawyers had been in touch with him about the ruling.
“Obviously everybody in the transparency, accountability and anti-surveillance community is thrilled with this ruling,” Radack said.
She also insisted the ruling’s implications for Snowden’s situation go well beyond one set of revelations.
“The same defective legal theory that underlies the phone-records program underlies many of the government’s other mass-surveillance programs,” she said. “Today’s ruling merits reconsideration of all of those programs, and it underscores the need for comprehensive systemic reform.”
Read more: http://www.politico.com/story/2015/05/edward-snowden-nsa-court-ruling-telephone-records-117733.html#ixzz3ZU5yGFKA
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