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Seven Years After Being Exposed, NSA Program Collecting American Phone Data Held to Be Illegal

SAN FRANCISCO, CALIFORNIA - SEPTEMBER 17: Newly released "Permanent Record" by Edward Snowden is displayed on a shelf at Books Inc. on September 17, 2019 in San Francisco, California. The U.S. Justice Department has filed suit against Snowden, a former Central Intelligence Agency employee and contractor for the National Security Agency, alleging the book violates non-disclosure agreements.  (Photo by Justin Sullivan/Getty Images)
By Joseph Fawbush, Esq. | Last updated on

Edward Snowden remains in Russia. Should he ever return to the U.S. he could face prosecution for exposing a National Security Administration program that collected data on the phone calls of American citizens without court approval, called the “telephony metadata collection program." The program began under President George W. Bush after the attacks on September 11, 2001. Recently, politicians, including President Trump, have floated the idea of pardoning Snowden.

While Snowden himself was not directly involved in the case, the Ninth Circuit Court of Appeals recently held that this NSA program violated the Foreign Intelligence Surveillance Act and may have been unconstitutional. Snowden, for one, viewed it as a win for himself, tweeting that the decision credited him for exposing the NSA program.

The case arose when four members of the Somali diaspora wired home over $15,000 to support al-Shabaab, a Somali insurgency group that used suicide bombers and other violence to support its goals. The U.S. labeled al-Shabaab a terrorist organization in 2008. The four Somali immigrants lived in California when they sent money to al-Shabaab. They were convicted of violating several federal anti-terrorism laws after an extensive FBI investigation.

Did Illegal Dragnet Lead to Damning Evidence?

The four men challenged their convictions, alleging that the evidence used was obtained in violation of their Fourth Amendment rights and federal law. According to the defendants, the FBI had previously closed an investigation centered around one of the men without bringing charges. However, after the NSA relayed to the FBI information obtained by its program, the FBI reopened the investigation and ultimately obtained wiretaps used to gather damaging evidence.

After Edward Snowden revealed the telephony metadata collection program, government officials used this case against the four Somali terrorist sympathizers to justify the program.

Despite Illegality, Suppression Not Appropriate

The unanimous panel, in extended dicta, analyzed the constitutionality of the program, ultimately finding that the defendants' “Fourth Amendment argument has considerable force." However, despite hinting that the program was unconstitutional, they ultimately refrained from deciding the issue because “suppression would not be warranted on the facts of this case."

The court did, however, find that the telephony metadata collection program violated the Foreign Intelligence Surveillance Act, which requires the government to first show the relevance to a particular authorized investigation before collecting phone records. Again, however, suppression was not warranted, because the telephony metadata collection program did not lead to the evidence used to convict the defendants. This is somewhat ironic, since as I mentioned the government's position at the time was that the program was a vital part of the investigation. However, the Ninth Circuit's review led them to conclude the government's position was “inconsistent with the contents of the classified record." In other words, public officials exaggerated the program's value.

Since the program ended in 2015 and the evidence used to convict the defendants will not be suppressed, the Ninth Circuit's decision has little impact. However, it does provide Edward Snowden with a certain amount of validation for coming forward about the program. Will that lead to a pardon?

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