Years of secret collection of all US one-on-one call data by the NSA was not only unlawful but also unconstitutional. A US federal appeals court ruled on Wednesday. For those four men who won the sentence, however, this is a Pyrrhic victory: the illegally collected evidence remains valid, the men do not get a new trial and remain in custody. Reason: The NSA lied.
Seven years ago, Edward Snowden uncovered a number of other NSA surveillance programs in addition to PRISM. One of them concerned the random collection of all telephone data from all US lines. Who telephoned whom, when, with whom and with which device was stored for years and fed into databases. Back in 2015, the US Federal Court of Appeals for the Second Federal Judicial District ruled this US telephone surveillance illegal because it violated Subsection IV of the Foreign Intelligence Surveillane Act (FISA).
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The US government defended itself at the time with reference to a case that could not have been uncovered without the total monitoring of the telephone connections: A man was sentenced to 18 years in prison in 2013 because he earned a total of 10,900 US dollars (currently a good 9,000 euros) sent to Africa. The money is said to have benefited militant Islamists.
Three other men, a preacher, a financial institution employee and a taxi driver, were sentenced to 13, 10 and 6 years imprisonment for complicity. To date, it is the only specific case that the US services have cited to justify them. After Snowden’s revelations, the four men filed for retrial because they had not been adequately informed of the origin of the evidence and could not contest the evidence. And because the surveillance was fundamentally illegal.
On Wednesday the federal appeals court ruled: Yes, the NSA phone surveillance was not only a violation of FISA, but also of the Fourth Amendment to the US Constitution. This is supposed to protect citizens from state attacks. However, the court does not come closer to the four men’s motion to declare the evidence invalid.
Because, the three judges concluded from secret court documents, the total surveillance of the telephone connections was not at all decisive for the conviction of the perpetrators: “To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record. ” (“To the extent that public statements by government officials have given a different impression, that impression is incompatible with the contents of the classified documents.”)
In other words, the US government lied when it used this case to justify unsolicited phone surveillance. This means that the convicts cannot rely on the Constitution to suppress the evidence.
The convicted cannot invoke the violated law. It is true that the NSA has violated the provisions of FISA, Subsection IV. However, while FISA specifically provides in subsections I, II, III and VI that improperly collected evidence can be suppressed in court, there is no such provision in subsection IV. So the court allows the illegally collected evidence and sees no reason for the Repeat criminal trial.
Judgment still has meaning
Even if it doesn’t help the four men, the verdict is not irrelevant. The mere fact that the unsolicited telephone surveillance in Germany was unconstitutional is of great political importance. It could bring Edward Snowden one step closer to a pardon.
In addition, the finding could help defendants in other criminal proceedings. And there is one more important point in the verdict: if the prosecution wants to bring evidence gathered through intelligence surveillance in a criminal case, they must disclose it to the defendants. This is intended to give defendants an opportunity to challenge the admissibility of the evidence.
The U.S. Ninth District Court of Appeals ruling affects four cases: USA v. Basaaly Saeed Moalin, Az. 13-50572, USA v. Mohamed Mohamed Mohamud, Az. 13-50578, USA v. Issah Doreh, Az. 13-50580, and USA v. Ahmed Nasir Taalil Mohamud, Ref. 14-50051.