by Noah Feldman, Bloomberg
In a major vindication for Edward Snowden — and a blow for the national security policy pursued by Republicans and Democrats alike — the US Court of Appeals for the Second Circuit ruled recently that the National Security Agency’s metadata collection program is unlawful. This is the most serious blow to date for the legacy of the USA Patriot Act and the surveillance overreach that followed 9/11.
The central question depended on the meaning of the word “relevant”: Was the government’s collection relevant to an investigation when it collects all the metadata for any phone call made to or from anywhere in the US?
The court said no. That was the right decision — not so much because it protects privacy, as because it broke the bad precedent of secret law created by the NSA and endorsed by the secret national security court known as the Foreign Intelligence Surveillance Court.
The first striking thing about the court’s opinion was how openly it relied on Snowden’s revelations of classified material. The court described how the program was known — by Snowden’s leaks. It also analyzed the NSA order to Verizon, leaked by Snowden, that proved the existence of the program and revealed indirectly the legal reasoning that the government relied on to authorize the metadata collection.
© 2016 Bloomberg LP