“What else haven’t you let us know,” Judge Robert Sack asked Assistant Attorney General Stuart Delery at a hearing at which ACLU challenged NSA’s phone dragnet last September.
Sack had good reason to ask.
Back when ACLU represented Amnesty International in a challenge to Section 702 of the FISA Amendments Act (better known as PRISM), the government falsely claimed that defendants caught using the authority got notice of the fact, which (if true) would give them standing to challenge the law. Only after Edward Snowden’s leaks made more details about the program public in 2013 did DOJ partially reverse course and fulfill that legal requirement.
Sack sat on the Second Circuit panel that had reviewed that challenge, as had Gerard Lynch. Both men were part of the unanimous decision released last week finding NSA’s dragnet authorized under a different section of FISA to be unlawful.
That’s important background to the concurring opinion Sack wrote in ACLU’s successful challenge to the phone dragnet. Both these judges have been lied to by DOJ, and it took Edward Snowden’s leaks to make that clear.
As a number of commentators have noted, in his opinion Sack compared Snowden with Daniel Ellsberg. “Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the ‘leak’ by Edward Snowden that led to this litigation,” Sack wrote, “calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ‘Pentagon Papers’ litigation.”
In a footnote to this discussion, Sack quoted from a dissent he wrote in an earlier leak case. “Some unauthorized disclosures … likely contribute to the general welfare,” Sack wrote in 2006. “Secretive bureaucratic agencies, like hermetically sealed houses, often benefit from a breath of fresh air.”
But his argument, here, seemed focused as much on hermetically sealed courts — the secretive FISA Court that rubber stamped the phone dragnet back in 2006 — as any agency.
Sack used the comparison between Ellsberg and Snowden to note how adversarial process served to persuade a previously skeptical Judge Murray Gurfein that the government’s claims the disclosure of the Pentagon Paper would harm national security were overblown. “I am constrained to find as a fact that the in camera proceedings at which representatives of the Department of State, Department of Defense and the Joint Chiefs of Staff testified,” Gurfein explained, “did not convince this Court that the publication of these historical documents would seriously breach the national security.” Even government officials ultimately conceded Gurfein’s judgment to be correct.
It’s as if Sack were suggesting (though he didn’t say so directly) that if the FISC only had a real adversarial process, it might have prevented the government from convincing a judge that every American’s phone records were relevant to a standing FBI investigation.
Even in public hearings on surveillance programs, Sacks knows from personal experience, the government isn’t telling the complete truth. It takes a real adversarial process — and even breaths of fresh air in the form of unauthorized disclosures from people like Ellsberg and Snowden — to get to the reality behind the government’s claims.