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Snowden hailed as whistleblower as US courts consider legality of NSA data collection

On 2 January 2014 both the New York Times and the Guardian published editorials calling on the US Government to reevaluate its attitude towards Edward Snowden, who currently faces three criminal charges, including two under the 1917 Espionage Act.

The New York Times Editorial Board wrote:

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

Adding that:

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security

Several members of Congress have indicated that they agree with the New York Times editorial.

US court confirms Snowden raised valid concerns

Almost seven months on from the publication of a FISA Court Order that demonstrated that US phone data was being collected on a systematic scale, challenges this first Snowden revelation made possible have begun to be adjudicated in US federal courts.

At least six cases have been launched in the US since 6 June 2013. Of these, the petition of the Electronic Privacy Information Center to the US Supreme Court to have the FISA Court order vacated was denied on 18 November 2013. Others (Smith v Obama, First Unitarian Church of Los Angeles v NSA, Paul v Obama) have yet to be decided.

But two contrasting judgments issued before Christmas – in Klayman v Obama and ACLU v Clapper – increase the likelihood that the Supreme Court will eventually have to decide whether domestic metadata collection is compatible with the Fourth Amendment’s prohibition of “unreasonable searches and seizures.”

On 16 December, in the first of those two judgments, Judge Richard Leon ruled that the collection of metadata was “almost Orwellian” and “probably unconstitutional.” While the ruling is not definitive – not least due to the contrasting judgment in ACLU v Clapper handed down days later – this high-level acknowledgement of the gravity of the concerns raised by Edward Snowden makes it difficult to deny his status as a whistleblower.

Edward Snowden himself issued a response to Judge Leon’s order:

“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts… Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The cases adjudicated so far only concern phone metadata collection within the United States, which accounts for just a fraction of the activities revealed over the past seven months. Fourth Amendment protections only apply to US citizens and there is no obvious legal avenue through which to challenge NSA activities against non-US citizens undertaken under FISA powers. As recently as 26 February 2013, the US Supreme Court denied that Amnesty International USA had the standing to mount such a challenge. This precedent is itself being challenged in a suit just launched by the Center for Constitutional Rights.