A federal appeals court ruled on Wednesday that a key aspect of the mass surveillance program exposed by former National Security Agency contractor Edward Snowden was illegal, but it did not reach a conclusion on its constitutionality.
A three-judge panel on the U.S. Court of Appeals for the 9th Circuit also upheld the convictions of four men who said they were monitored under the program for sending thousands of dollars to support the terrorist group al Shabab back in Somalia.
The panel found that the usage of the NSA’s bulk metadata collection program, which secretly collected information on millions of U.S. citizens’ phone calls and was exposed by Snowden, violated the law. But they declined to reach a decision on whether the program violated the Constitution because the judges concluded that the evidence used at trial was untainted by the program — despite claims from government officials who had tried to defend the since-shuttered NSA program, effectively ended by 2015’s USA FREEDOM Act, by pointing to the case as an example of one in which it was critical and necessary to obtain convictions.
Circuit Judge Marsha Berzon, who authored the 59-page opinion, said that the appeal “raised complex questions regarding the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance,” but ultimately upheld the convictions. The court found that “the metadata collection exceeded the scope of Congress’s authorization … which required the government to make a showing of relevance to a particular authorized investigation before collecting the records, and that the program therefore violated that section of FISA.”
Snowden, 37, worked at the CIA prior to a stint as a contractor for the NSA. In 2013, he left his job at an NSA facility in Hawaii, flew to Hong Kong, and disclosed hundreds of thousands of classified documents to journalists. Snowden revealed not just the domestic surveillance programs but also exposed national security operations conducted around the world by the United States and its allies, including against terrorists and adversaries such as China. Snowden, granted asylum by Russia and now living in Moscow, was charged with violating the Espionage Act.
“The panel held that the government may have violated the Fourth Amendment when it collected the telephony metadata of millions of Americans, including at least one of the defendants, pursuant to the Foreign Intelligence Surveillance Act, but that suppression is not warranted on the facts of this case,” Berzon wrote on Wednesday. “Having carefully reviewed the classified FISA applications and all related classified information, the panel was convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial. The panel wrote that to the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record.”
The appeals court said that the “defendants’ Fourth Amendment argument has considerable force,” adding, “but we do not come to rest as to whether the discontinued metadata program violated the Fourth Amendment.”
The convictions for the four defendants who are part of the Somali diaspora in the U.S. (Basaaly Saeed Moalin and Ahmed Nasir Taalil Mohamud, who were taxi drivers, Mohamed Mohamed Mohamud, who was an imam at a mosque, and Issa Doreh, who worked at Shidaal Express, an informal money transfer businesses known as a “hawala”) stand after they were found guilty of supporting al Shabab. Then-Secretary of State Condoleeza Rice designated the group a foreign terrorist organization in March 2008, calling it “a violent and brutal extremist group with a number of individuals affiliated with al Qaeda.” The group pledged its allegiance to al Qaeda in 2012 and has carried out a host of high-profile mass shootings and deadly bombings since that time.
The men were charged with a host of crimes related to support for a foreign terrorist organization for sending $15,900 to Somalia between January and August of 2008 to support al Shabab. The government informed the court at the time that it intended to use “information obtained or derived from electronic surveillance conducted pursuant to the authority” of the Foreign Intelligence Surveillance Act, and a host of intercepts were presented at trial. The men were convicted by a jury in February 2013, and Snowden’s disclosures happened that June. Some U.S. government officials defended the NSA program by pointing to its importance in terrorism cases, and then-FBI Deputy Director Sean Joyce specifically named Moalin as the target of one such investigation. But the appeals court found that, contrary to these statements, the NSA program wasn’t as key to the case against Maolin as had been claimed, even if the NSA program was illegal.
The American Civil Liberties Union tweeted that “this ruling, which confirms what we have always known, is a victory for our privacy rights.”
Snowden himself also celebrated the ruling, tweeting: “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.”
Last month, President Trump said he was “going to start looking at” a possible pardon for Snowden, after which Attorney General William Barr said he is personally “vehemently opposed” to pardoning the “traitor.”
The House Intelligence Committee released a heavily redacted report on Snowden in September 2016, arguing Snowden “was not a whistleblower” and that “Snowden caused tremendous damage to national security, and the vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests — they instead pertain to military, defense, and intelligence programs of great interest to America’s adversaries.”
