[This is the re-publication of a diary from June 19. I am not usually wont to re-publish my work (out of 133 diaries, I have only re-published part of one once before this). However, I feel this diary deserves it, as it is a "scoop" on an important subject. Besides the "scoop" nature of the diary, I believe it is imperative for Greenwald, who claims that the United States is violating the Constitution and is a "security state," be posed a few hard, but legitimate, questions.]
[Please note that I have made changes to the original diary in that I have added into the body of this version a screengrab of Glenn Greenwald, in 2006, chastising the Bush Administration for not obtaining a court order for the NSA metadata program, juxtaposed with a screengrab of Greenwald, in 2013, chastising the Obama Administration for obtaining a court order for the NSA metadata program. Also, I have added the word "Exclusive" to the title of the diary. I have had the time to search the web to see if this has been previously reported. It appears that it has not. Finally, there is a string of comments that follow the earlier version of this diary. Along with the original diary, they can be found here.]
As some of you may know, I have been asking Glenn Greenwald to discuss the Supreme Court case of Smith v. Maryland, 442 U.S. 735, 744 (1979). That's because the Smith case, decided thirty-five years ago, held that Government could obtain the telephone metadata of even known, identified persons without a warrant. All that was needed to obtain the metadata, according to the Supreme Court, was a court order or a subpoena, which is quite a bit different from, and easier to acquire than, a warrant. Every court that has heard a case involving the NSA metadata program has dealt with the Smith v. Maryland case. The reason the NSA metadata program is still ongoing, despite the recent public controversy, is because that particular case makes it Constitutional.
Yet, after having reviewed every Greenwald-authored or co-authored article at The Guardian since June 2013, as well as every Greenwald-authored or co-authored post on TheIntercept blog since its inception, I have found zero mentions by him of that seminal case. This is the Roe v. Wade of metadata cases, so I thought his obvious and protracted evasion of the issue a little strange. Had Greenwald ever been aware of the Smith v. Maryland case? I couldn't locate a single mention of it.
In a 2006 post on blogspot.com, Glenn Greenwald went into quite a lot of detail about pen registers (the subject of the Smith v. Maryland case), the Smith case itself, and the FISA laws that applied to the metadata program. Greenwald opined about what the "Constitutional" standard should be and dug into the law, chastising the Bush Administration for not obtaining court orders before demanding metadata from telephone companies.
The crux of the matter is this: Greenwald said in his 2006 piece that the then-NSA program ran afoul of Smith v. Maryland and the Fourth Amendment because the Bush Administration did not obtain a court order to gain the metadata from the telephone companies. That could make the program unconstitutional per Smith v. Maryland. Greenwald also argued that the metadata obtained by the Bush Administration provided "identification" information about the people making and receiving the telephone calls, which meant that the metadata program could possibly violate the FISA law. That could make the program illegal by statute. The problem for Greenwald is that, between 2006 and 2013, those defects in the NSA procedures were changed.
There was a third issue involving Article II. Bush Administration officials, apparently, argued in 2006 that Article II gave them the right to run the NSA program the way they were doing it because of national security. Greenwald was against that interpretation of Article II. The thing is, the Obama Administration has not adopted that kind of reliance on Article II as a legal basis for the NSA metadata program. So even this potential problem is no longer a problem. This left 2013-Greenwald with two options: Either move your goal posts, or ignore the fact that the Government made the changes that 2006-Greenwald thought necessary to bring the NSA program into Constitutional and legal compliance. Greenwald chose to ignore the changes. Here are some quotes:
"Section 214’s modification of prior law is both modest and eminently reasonable. Agents are still required to obtain a court order before installing a pen register. In addition, they are still required to make a solemn representation to the court; now, however, that is limited to certifying that the information sought would be relevant to an investigation to protect against international terrorism or clandestine intelligence activities."
It is true that, strictly speaking, at least based on what we know, the Government has not used pen registers here. They didn't need to. Instead of collecting this information telephone-by-telephone, they just skipped the whole pen register annoyance and had the telecommunications companies give them all of that information for every phone. Still, it is hard to imagine (at least for people acting in good faith) how it could be illegal for the Government to use a pen register device without a court order for a single phone (it appears clear that that is illegal), but it is perfectly legal for the Government to obtain pen register information for everyone's phone in the country without bothering to obtain a court order of any kind.
Finally, I would be remiss if I failed to point out this passage written by Andrew McCarthy from the above-linked debate on The Patriot Act and FISA, something McCarthy wrote before he knew the President had ordered eavesdropping on Americans without court approval:
"Why such extensive access with virtually no court supervision? Because the items at issue here are primarily activity records voluntarily left in the hands of third parties. As the Supreme Court has long held, such items simply do not involve legitimate expectations of privacy. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979)."
Perhaps it's because if he ignored the case, and if he ignored his 2006 vetting of the NSA metadata program, and if he ignored the changes made by the Obama Administration and Congress to the NSA procedures making them Constitutional and legal, Greenwald might be able to get away with something like this:
That is Greenwald, in his 2006 blog, chastising the Bush Administration for not obtaining a court order to collect metadata for the NSA metadata program. And here's 2013-Greenwald:
And 2013-Greenwald is chastising the Obama Administration for obtaining a court order to collect metadata for the NSA metadata program.
In the very first paragraph of his very first post dealing with the issue of the NSA metadata program in 2006, Greenwald alludes to the Smith v. Maryland case by linking, with approval, the analysis of that case's application to the NSA program as provided by Law Professor Orin Kerr of the George Washington University School of Law:
Orin Kerr has a post which preliminary assesses some of the legal issues involved with the domestic data gathering program, concluding (in his standard, very careful law-professor-ese) that "my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute." I think -- preliminarily -- that the statutory problems may be more severe than he seems to suggest....
Note that Greenwald did not question the professor's analysis of the Constitution and, even specifically, the Fourth Amendment.
2013-Greenwald's failure to disclose to the public and discuss the Smith v. Maryland case regarding the Snowden situation is like spending a year of public discussion on the constitutionality of Choice without once bringing up Roe v. Wade. It is like a year's worth of debate about constitutional limits on campaign finance reform without breathing the words Citizen's United.
If Greenwald was an attorney arguing his current position about the NSA metadata program in a courtroom in front of a judge, he would be under an ethical duty to advise the judge of the Smith v. Maryland case because it is "adverse authority." See, e.g., A.B.A. Model Rule of Professional Conduct 3.3. "Adverse authority" is any caselaw or statute or regulation or other authority, controlling in that jurisdiction, which applies to the issue being litigated, and which contradicts your position. A thirty-five-year-old United States Supreme Court case is the cream of the crop when it comes to adverse authority. Does Greenwald owe less of a duty to the public because he's supposed to be a "journalist"?
I can see how not mentioning the Smith v. Maryland case would be in Greenwald's personal best interest. If he did mention the case, somebody might go looking to see if he had discussed the subject previously, and finding that he had, analyze what he wrote at that time, then compare it to his current stance. That would open up a can of worms for Greenwald and Snowden. Intrepid and curious journalists might ask:
If the only reason you felt the Bush-era NSA metadata program was unconstitutional was because the Bush Administration didn't ask for a court order for the metadata, but the Obama Administration is getting a court order for the metadata every single time, why the fuss?Reporters might ask this, too:
If the reason the Bush NSA metadata program was illegal pursuant to the FISA laws was because the metadata could provide some type of "identification content" about the author of the communication employing the Bush procedures in use at the time, but the Obama NSA metadata program uses minimization procedures which strictly forbid any identification of US Persons, and it requires that all US Persons remain completely anonymous (unless there is proof of a link to terrorism), why the fuss?Reporters--even bloggers--might ask these hard questions of Greenwald:
@ggreenwald Does your book even mention the Smith v. Maryland case?— Tort Master (@theTortmaster) June 6, 2014
@ggreenwald Why haven't real journos asked you about the Smith v. Maryland case?— Tort Master (@theTortmaster) June 6, 2014
@ggreenwald Why haven't real journos asked you if you advised Edward Snowden about the Smith v. Maryland case before he left for China?— Tort Master (@theTortmaster) June 6, 2014
@ggreenwald As a lawyer, not citing Adverse Authority to the court is an ethical violation. See ABA Rule 3.3. As a "journalist"?— Tort Master (@theTortmaster) June 6, 2014
I'm not going to question why this is a big news item in 2013 and 2014 when it was such a little news item in 2006. However, the critic who set standards to be applied in 2006 should explain why his same standards don't apply in 2014. He claimed that President George W. Bush's NSA metadata program was unconstitutional because the NSA didn't seek a court order before obtaining the information. There's no dispute that under the current set of circumstances Verizon was served with a court order to turn over metadata. Those are all links to Greenwald's reporting in The Guardian which shows that, in fact, the Government had obtained a court order to access the metadata. Greenwald claimed that President Bush's NSA metadata program was illegal because it revealed identification content, but the Obama Administration's program does not allow the NSA to look at information like names or addresses or any other immediate identifiers. Why the double standard? Mostly, though, why the evasion and radio silence?
Playing Devil's Advocate here, it could be argued that Greenwald had other reasons for believing the NSA metadata program was unconstitutional, reasons that he wasn't able to describe in his blogspot.com post in 2006 because of time constraints or because he hadn't fully researched the question or because there was another, unidentified reason. (Forget, for a moment, the fact that thirty-six of thirty-seven Federal courts that have heard the matter have held that the Smith v. Maryland case applies and that the program is legal. The only court of the thirty-seven that said the program might be illegal failed to enjoin it.)
A time constraints argument is without merit, as Greenwald did have enough time to update his post four times, with one of the updates mentioning a media appearance and another talking about his then-current book. Also, Greenwald's not having fully researched the question doesn't seem like a worthwhile argument, as all of the thirty-seven courts that have litigated the matter have had Government and/or private and ACLU attorneys briefing the legal issues, and those courts also had staff attorneys to research the law. Judges, themselves, have been known to crack a law book or two on occasion.
Probably the best argument Greenwald could make is that this was a preliminary post. He even uses the words "preliminary" and "preliminarily," as well as the phrase "none of this is set in stone." Still, he did cite the legal opinion of a law professor, reviewed the lengthy USA Today article breaking the 2006 story, looked at the FISA laws and other possibly related laws, and he conducted additional research into the opinions of supposed experts, including Kate Martin, then-Director of the Center for Strategic Studies, ex-Federal prosecutor Andrew McCarthy, and Mary DeRosa, senior fellow in the Technology and Public Policy Program at the Center for Strategic and International Studies.
Additionally, a problem with the argument that Greenwald's arguments were only preliminary is Greenwald himself. In an earlier posting at the same blog, Greenwald chastised other lawyers for providing opinions on the constitutionality and legality of the program before having had the time to effectively research the law. This is what he wrote:
Magically, hordes of brilliant pro-Bush legal scholars have been able to determine instantaneously -- as in, within hours of the program's disclosure -- that the program is completely legal and constitutional (just like so many of them were able confidently to opine within hours of the disclosure of the warrantless eavesdropping program that it, too, was perfectly legal and constitutional).
I think the most obvious and likely reasons we have not heard about this--or this kind of--analysis in 2013 and 2014 are as follows: (1) If the public knew that the NSA metadata program was outed in 2006 and received a thorough public analysis and vetting at that time, then stories about it in 2013 and 2014 wouldn't seem so fresh and exciting. (2) The program, overall, didn't violate the Fourth Amendment to the Constitution, and the main statutory defect in the Bush NSA metadata program has been corrected. It's as if the Obama Administration and Congress heard the critiques of Civil Libertarians and the requests of communications carriers and resolved those issues. (3) The embarrassment for Greenwald in having to explain Number Two above, as well as his current goal-post moving. (e.g., In the first paragraph of his blogspot.com posting, Greenwald basically concedes that the NSA metadata program circa 2006 was Constitutional and that there were no Fourth Amendment issues as long as the Government first obtained a court order (which is the practice now)).
As a final note of irony, let's look at one last quote from Greenwald's 2006 blog post about the NSA metadata program:
People who fundamentally change their views on issues this significant all in order to defend a Leader's conduct can be called many things. None of them is flattering.What if the "Leader" is a meal-ticket named Edward Snowden?