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SG & TP: How do you see the current state of the right to privacy? BW: I joked when I took this job that I was relieved that I was going to be working on the Fourth Amendment, because finally I’d have a chance to win. That was intended as gallows humor; the Fourth Amendment had been a dishrag for the last several decades, largely because of the war on drugs. The joke in civil liberties circles was, “What amendment?” But I was able to make this joke because I was coming to Fourth Amendment litigation from something even worse, which was trying to sue the CIA for torture, or targeted killings, or various things where the invariable outcome was some kind of non-justiciability ruling. We weren’t even reaching the merits at all. It turns out that my gallows humor joke was prescient.

The truth is that over the last few years, we’ve seen some of the most important Fourth Amendment decisions from the Supreme Court in perhaps half a century. Certainly, I think the Jones decision in 2012 [U.S. v. Jones], which held that GPS tracking was a Fourth Amendment search, was the most important Fourth Amendment decision since Katz in 1967 [Katz v. United States], in terms of starting a revolution in Fourth Amendment jurisprudence signifying that changes in technology were not just differences in degree, but they were differences in kind, and require the Court to grapple with it in a different way. Just two years later, you saw the Court holding that police can’t search your phone incident to an arrest without getting a warrant [Riley v. California]. Since 2012, at the level of Supreme Court jurisprudence, we’re seeing a recognition that technology has required a rethinking of the Fourth Amendment at the state and local level. We’re seeing a wave of privacy legislation that’s really passing beneath the radar for people who are not paying close attention. It’s not just happening in liberal states like California; it’s happening in red states like Montana, Utah, and Wyoming. And purple states like Colorado and Maine. You see as many libertarians and conservatives pushing these new rules as you see liberals. It really has cut across at least party lines, if not ideologies. My overall point here is that with respect to constraints on government surveillance—I should be more specific—law-enforcement government surveillance—momentum has been on our side in a way that has surprised even me.

Do you think that increased privacy protections will happen on the state level before they happen on the federal level? BW: I think so. For example, look at what occurred with the death penalty and the Supreme Court’s recent Eighth Amendment jurisprudence. The question under the Eighth Amendment is, “Is the practice cruel and unusual?” The Court has looked at what it calls “evolving standards of decency” [Trop v. Dulles, 1958]. It matters to the Court, when it’s deciding whether a juvenile can be executed or if a juvenile can get life without parole, what’s going on in the states. It was important to the litigants in those cases to be able to show that even if most states allowed the bad practice, the momentum was in the other direction. The states that were legislating on this most recently were liberalizing their rules, were making it harder to execute people under 18 or to lock them up without the possibility of parole. I think you’re going to see the same thing with Fourth Amendment and privacy jurisprudence, even though the Court doesn’t have a specific doctrine like “evolving standards of decency.” The Court uses this much-maligned test, “Do individuals have a reasonable expectation of privacy?” We’ll advance the argument, I think successfully, that part of what the Court should look at in considering whether an expectation of privacy is reasonable is showing what’s going on in the states. If we can show that a dozen or eighteen state legislatures have enacted a constitutional protection that doesn’t exist in federal constitutional law, I think that that will influence the Supreme Court.

The question is will it also influence Congress. I think there the answer is also “yes.” If you’re a member of the House or the Senate from Montana, and you see that your state legislature and your Republican governor have enacted privacy legislation, you’re not going to be worried about voting in that direction. I think this is one of those places where, unlike civil rights, where you saw most of the action at the federal level and then getting forced down to the states, we’re going to see more action at the state level getting funneled up to the federal government.

A spokesman for the Defense Intelligence Agency, which spearheaded the report, said the report was an “initial assessment”, and the work of the Information Review Task Force was “ongoing”. But neither the House intelligence committee leaders nor the DIA would provide additional information substantiating the allegations of Snowden’s impact.  “The report is classified and is not releasable,” said the DIA spokesman, who would not agree to be quoted by name. The classified interim assessment was delivered to the House and Senate intelligence committees on 6 January, and the DIA spokesman said there is no deadline for a final report, nor a mandate to make such a report public. 

Snowden's attorney, Ben Wizner, described the report as an attack on the journalism produced by the Snowden disclosures. "In truth, Mike Rogers is only indirectly attacking Snowden. He’s directly attacking the journalists who have reported on these revelations. There is not a shred of evidence that any adversary has had any access to any document other than those published by journalists, and they haven't contradicted that," Wizner told the Guardian. "We shouldn’t have any confidence in the accuracy of this innuendo. The government has shown time and again they have very little idea of what Snowden had access to."

Speaking outside the White House after a separate meeting with Obama, senator Rand Paul also stepped up his calls for government leniency toward Snowden, contrasting his treatment with Clapper, who has admitted misleading the Senate about surveillance. "Those who call for some sort of frontier justice for [Snowden] need to understand the laws needs to apply equally," Paul told reporters. "James Clapper by all accounts committed perjury which is punishable by five years in prison and if you want to throw the book at Snowden, it's a little hard to say 'Oh, but we're not going to do anything about James Clapper lying to Congress.'"

Asked if he was making a direct comparison, Paul added: "It's not my job to compare them or contrast what they did, but what James Clapper did has greatly harmed the credibility of the intelligence agencies ... he has really greatly damaged the intelligence community. It's arguable." After meeting with Obama, Wyden saw the debate over surveillance winding toward a conclusion. “This is crunch time. The decisions are going to be made in the very near future,” Wyden said. “The president made clear he wanted to hear from us. I’m going to keep urging members of Congress and the public to stand on the side of real reform and end intrusive surveillance practices that in effect violate the liberties of our people without making us safer.”

In interviews, U.S. officials acknowledged that they had no specific intelligence that Snowden would be on Morales’s plane. But the Bolivian leader’s remark was enough to set in motion a plan to enlist France, Spain, Italy and Portugal to block the Bolivian president’s flight home.

State Department and CIA officials pressured countries seen as potential destinations to turn Snowden away, reducing his options to a handful hostile toward the United States. Among them was Bolivia, whose president had signaled publicly that he would consider giving Snowden asylum.

The lack of a warrant deeming Snowden a foreign agent would also cast doubt on the claims of some of his critics. U.S. officials, including Rep. Mike Rogers (R-Mich.), the chairman of the House Intelligence Committee, have speculated that Snowden had Russian help in stealing U.S. secrets and probably works with the FSB now. Snowden has acknowledged that he was approached by Russian intelligence upon his arrival, but he has said he rejected the pitch and did not bring any classified files with him. He insisted in a recent NBC television interview that he has “no relationship” with the Russian government.

As it crossed Austria, the aircraft made a sudden U-turn and landed in Vienna, where authorities searched the cabin — with Morales’s permission, officials said — but saw no sign of Snowden.

Austrian officials said they were skeptical of the plan from the outset and noted that Morales’s plane had taken off from a different airport in Moscow than where Snowden was held. “Unless the Russians had carted him across the city,” one official said, it was unlikely he was on board. Even if Snowden had been a passenger, officials said, it is unclear how he could have been removed from a Bolivian air force jet whose cabin would ordinarily be regarded as that country’s sovereign domain — especially in Austria, a country that considers itself diplomatically neutral. “We would have looked foolish if Snowden had been on that plane sitting there grinning,” said a senior Austrian official. “There would have been nothing we could have done.”

Wizner declined to discuss where Snowden lives, or how he secured an apartment in a city where such transactions require government involvement — except to indicate that Snowden’s Russian attorney, Anatoly Kucherena, has helped with such arrangements. Snowden’s relationship with Kucherena, who has close ties to Putin and serves on an FSB advisory board, has fueled speculation that he is working with the Russian government.

Three sources familiar with informal discussions of Snowden’s case told Yahoo News that one top U.S. intelligence official, Robert Litt, the chief counsel to Director of National Intelligence James Clapper, recently privately floated the idea that the government might be open to a plea bargain in which Snowden returns to the United States, pleads guilty to one felony count and receives a prison sentence of three to five years in exchange for full cooperation with the government.

But details to back up Rogers' claims are not included in the declassified material released to the Guardian.Neither he nor any other lawmaker has disclosed specific details from the DIA report but they have continued to push the “damage” narrative in interviews with journalists and during appearances on Sunday talk shows.

The declassified material does not state the number of documents Snowden is alleged to have taken, which Rogers and Ruppersberger have claimed, again citing the DIA’s assessment, was 1.7m. Nor does the declassified portion of the report identify Snowden by name.“[Redacted] a former NSA contractor compromised [redacted] from NSA Net and the Joint Worldwide Intelligence Communications System (JWICS),” the report says. “On 6 June 2013, media groups published the first stories based on this material, and on 9 June 2013 they identified the source as an NSA contractor who had worked in Hawaii.”JWICS is identified as a “24 hour a day network designed to meet the requirements for secure [top-secret/sensitive compartmented information] multi-media intelligence communications worldwide. The Defense Intelligence Agency (DIA) has directed that all Special Security Offices (SSOs) will install the JWICS.”The Washington Post, quoting anonymous sources, reported last October that Snowden “lifted the documents from a top-secret network run by the Defense Intelligence Agency and used by intelligence arms of the Army, Air Force, Navy and Marines.” The Post further claimed that Snowden “took 30,000 documents that involve the intelligence work of one of the services” and that he gained access to the documents through JWICS.

A top-secret Pentagon report to assess the damage to national security from the leak of classified National Security Agency documents by Edward Snowden concluded that “the scope of the compromised knowledge related to US intelligence capabilities is staggering”. The Guardian has obtained a copy of the Defense Intelligence Agency's classified damage assessment in response to a Freedom of Information Act (Foia) lawsuit filed against the Defense Department earlier this year. The heavily redacted 39-page report was prepared in December and is titled “DoD Information Review Task Force-2: Initial Assessment, Impacts Resulting from the Compromise of Classified Material by a Former NSA Contractor.” But while the DIA report describes the damage to US intelligence capabilities as “grave”, the government still refuses to release any specific details to support this conclusion. The entire impact assessment was redacted from the material released to the Guardian under a presidential order that protects classified information and several other Foia exemptions.

Only 12 pages of the report were declassified by DIA and released. A Justice Department attorney said DIA would continue to process other internal documents that refer to the DIA report for possible release later this year. Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, questioned the decision to withhold specific details. "The essence of the report is contained in the statement that 'the scope of the compromised knowledge related to US intelligence capabilities is staggering'. But all elaboration of what this striking statement means has been withheld," he said. The assessment excluded NSA-related information and dealt exclusively with non-NSA defense materials. The report was distributed to multiple US military commands around the world and all four military branches.

The classified damage assessment was first cited in a news report published by Foreign Policy on January 9. The Foreign Policy report attributed details of the DIA assessment to House intelligence committee chairman Mike Rogers and its ranking Democrat Dutch Ruppersberger. The lawmakers said the White House had authorized them to discuss the document in order to undercut the narrative of Snowden being portrayed as a heroic whistleblower. The DIA report has been cited numerous times by Rogers and Rusppersberger and other lawmakers who claimed Snowden’s leaks have put US personnel at risk. In January, Rogers asserted that the report concluded that most of the documents Snowden took "concern vital operations of the US Army, Navy, Marine Corps and Air Force". "This report confirms my greatest fears — Snowden’s real acts of betrayal place America’s military men and women at greater risk. Snowden’s actions are likely to have lethal consequences for our troops in the field," Rogers said in a statement at the time.

But details to back up Rogers' claims are not included in the declassified material released to the Guardian. Neither he nor any other lawmaker has disclosed specific details from the DIA report but they have continued to push the “damage” narrative in interviews with journalists and during appearances on Sunday talk shows. The declassified portion of the report obtained by the Guardian says only that DIA “assesses with high confidence that the information compromise by a former NSA contractor [redacted] and will have a GRAVE impact on US national defense”. The declassified material does not state the number of documents Snowden is alleged to have taken, which Rogers and Ruppersberger have claimed, again citing the DIA’s assessment, was 1.7m.

No evidence has surfaced to support persistent claims from pundits and lawmakers that Snowden has provided any of the NSA documents he obtained to a “foreign adversary”. Ben Wizner, Snowden’s attorney at the American Civil Liberties Union, said: "This report, which makes unsubstantiated claims about alleged harm to national security, is from December of 2013. Just this month, Keith Alexander admitted in an interview that he doesn’t 'think anybody really knows what he [Snowden] actually took with him, because the way he did it, we don’t have an accurate way of counting'. In other words, the government’s so-called damage assessment is based entirely on guesses, not on facts or evidence."

Steven Aftergood, of the Federation of American Scientists, pointed out that the report's finding that the Snowden leaks had a "grave" impact did not follow any of the levels defined in the annex. "That is a bit odd," he said, adding: "Within this hierarchy, it is not clear where 'grave impact' would fall."

But in this case, there is no apparent U.S. government conduct at issue in the lawsuit. At least based on what they claim about themselves, UANI is just “a not-for-profit, non-partisan, advocacy group” that seeks to “educate” the public about the dangers of Iran’s nuclear program. Why would such a group like this even possess “state secrets”? It would be illegal to give them such material. Or could it be that the CIA or some other U.S. government agency has created and controls the group, which would be a form of government-disseminated propaganda, which happens to be illegal? What else could explain the basis for the U.S. government’s argument that allowing UANI to be sued would risk the disclosure of vital “state secrets” besides a desire to cover up something quite untoward if not illegal? What “state secrets” could possibly be disclosed by suing a nice, little “not-for-profit, non-partisan, advocacy group”?

This sham worked. This week, Judge Ramos issued his ruling dismissing the entire lawsuit (see below). As a result of the DOJ’s protection, UANI cannot be sued. Among other things, it means this group of neocon extremists now has a license to defame anyone they want. They can destroy your reputation with false accusations in a highly public campaign, and when you sue them for it, the DOJ will come in and whisper in the judge’s ear that national security will be damaged if — like everyone else in the world — UANI must answer in a court of law for their conduct. And subservient judicial officials like Judge Ramos will obey the U.S. government’s dictates and dismiss your lawsuit before it begins, without your having any idea why that even happened. Worse, in his written ruling, the judge expressly acknowledges that dismissal of the entire lawsuit at the start on secrecy grounds is what he calls a “harsh sanction,” and also acknowledges that “it is particularly so in this case because Plaintiffs not only do not get their day in court, but cannot be told why” (emphasis added). But he does it anyway, in a perfunctory 18-page opinion that does little other than re-state some basic legal principles, and then just concludes that everything the government whispered in his ear should be accepted.