NACDL and its members have long feared that overbroad national security policies would become the norm for all criminal prosecutions, and today we know our concerns were not unfounded. Nearly every day brings new disclosures about the government’s surveillance capabilities, which further threaten the Fourth and First Amendment rights of every person. The time has long passed for the government to provide full disclosure of the complete nature and extent of its secret surveillance programs and the secret law that forms the basis for the programs. NACDL is fighting to bring transparency, oversight, and due process back to these overbroad post-9/11 surveillance authorities.
In the weeks following the attacks of September 11, 2001, Congress passed the USA PATRIOT Act, which through many amendments over the past 13 years forms the basis for the first and most widely discussed program disclosed by Edward Snowden — the collection of most telephone records in the United States. While the program does not permit the collection of the content of communications, it does allow the National Security Agency (NSA) to obtain call-detail records, including the numbers dialed and the duration of the calls. Though the government asserts that it is not collecting location information or the identities of the callers under this program, we know that broad authority exists that permits the collection of this and other private information, such as Executive Order 12333 regarding United States Intelligence Activities.
The bulk collection of any records without individualized and particularized suspicion is an affront to the Constitution. NACDL seeks an end to all bulk records collection, not just the bulk telephone records program. We are working with civil liberties allies in Congress to end these programs. Additionally, we are providing training and resources to NACDL members who are faced with evidentiary issues involving these surveillance programs in pending and closed criminal cases.
The government claims that no harm is done to individual privacy interests because the telephone records are only searched if the NSA, to its own satisfaction, establishes reasonable articulable suspicion (RAS) that the records are connected to a suspicious telephone number. In January, President Obama made an historic speech on the review of America’s signals intelligence. He ordered the NSA to obtain a RAS determination from the secret Foreign Intelligence Surveillance Court (FISC) before searching the phone records in the NSA’s possession. This and other backend protections outlined in the speech are welcome first steps to reform the program, but, unfortunately, the president just does not get it. The harm has already been done before the FISC determination. The initial collection of the information is itself a seizure and should be subject to individual particularized suspicion standards under the Fourth Amendment. The program simply needs to end.
Much time and energy has been spent debating the legality of the programs and whether the programs are what Congress intended when it passed the legislation cited as authority for the programs. Those debates miss the mark. The real question is whether these programs are constitutional, which cannot be determined without true adversarial challenge in a real court. And if they are constitutional, should we as a matter of sound public policy even engage in this broad surveillance at all?
Two independent panels have said no, at least not the way we have been doing it. Both the president’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board (PCLOB) said that the program has not been essential in preventing attacks. Two out of three members of the PCLOB even said the program has no basis in existing statutory law and is constitutionally suspect under the Fourth and First Amendments, and, therefore, should end. Law enforcement officials can fight crime and terrorism with the tools they already have at their disposal, which better protect the privacy interests of criminal defendants and innocent Americans.
Many of NACDL’s members have been at the forefront on these issues long before the Snowden disclosures. The use of evidence obtained by the intelligence community under FISA has been an issue for over 30 years. NACDL members have fought the use of secret evidence in criminal cases for decades and are among the first in the country to challenge the use of the recently disclosed programs in court. Until January 2014, no defense lawyer had ever been permitted to see the underlying government application to the FISC for either an individual or general FISA order, nor had they ever seen the court’s actual order. It was NACDL members who won a long-fought court battle in a pending criminal case to see these documents for the first time ever. Defense lawyers have been arguing in the dark for too long, and now, because of many NACDL members, the tide is changing.
No one knows for sure what future disclosures will bring, but NACDL will be there every step of the way to assist its members in understanding and challenging government overreach. Privacy and security are not mutually exclusive.
Jerry J. Cox is a sole practitioner based in Mount Vernon, Ky., where he has practiced criminal defense law for over 40 years. He is certified as a Criminal Specialist by the National Board of Trial Advocacy (NBTA), and he served on the NBTA Board of Examiners in 2004. He is a past president of the Kentucky Association of Criminal Defense Lawyers and a Life Member of NACDL. In 2002, the Kentucky Department of Public Advocacy recognized his commitment to criminal defense by awarding him the Nelson Mandela Lifetime Achievement Award.