The 97-page opinion was harsh, overturned a lower court and was the first time a federal appeals court assessed the controversial program that followed the Sept.11 bombings. Its existence was disclosed in June 2013 by former NSA contractor Edward Snowden with the help of reporters including Glenn Greenwald.
So it seems like it’s important as it discusses the “staggering” volumes of calls being subject to surveillance. But it’s also likely that even few reporters and editors who cover legal affairs actually read the decision and instead relied on the initial reports of what was in it. It’s long, filled with footnotes and rather dry, if seemingly tough on the program.
What should a reporter or editor interested in the subject really know?
There’s nobody better to ask than Geoffrey Stone, a University of Chicago law professor and former dean of the law school. He’s not only a civil liberties expert but President Obama picked him to be on an elite five-person panel to investigate the NSA after the Snowden revelations.
The others were Michael Morell, a former deputy director of the CIA whose new book charges the Snowden disclosures compromised security and helped the rise of ISIS; Cass Sunstein, a Harvard law professor who served in the Obama White House; Richard Clark, a high ranking national security official in the Clinton and both Bush administrations; and Peter Swire, an academic whose specialty is privacy law.
Here are Stone’s five takeaways for journalists:
- The decision holds that section 215 of the Patriot Act cannot properly be interpreted to authorize the NSA’s telephone metadata program. In reaching that conclusion, the court of appeals disagrees with the judgment of the [special oversight] FISA Court.
- The decision does not address the question whether Congress could constitutionally authorize the telephone metadata program.
- The decision has no direct relevance to the question whether Congress should amend section 215 either to expressly authorize or to expressly limit the telephone metadata program. That is a policy matter that the court does not directly address.
- The decision leaves unclear how the court would interpret section 215 if Congress were now to reauthorize the provision as currently written. Would reauthorization today, given that the telephone metadata program is now well known, be construed as congressional approval of the program? Hopefully, Congress will eliminate the need for this question by either expressly authorizing or expressly limiting the telephone metadata program, but the need for “compromise” and to “pass the buck” might lead Congress just to reauthorize the provision as currently written and toss the issue back to the courts. That would be unfortunate.
- The decision makes clear the extraordinary challenge of expecting Congress expressly to authorize secret surveillance programs. It gives no suggestion, however, of how Congress can meet that challenge.