Edward Snowden's most famous leak has just been vindicated. Since June 2013, when he revealed that the telephone calls of Americans are being logged en masse, his critics have charged that he took it upon himself to expose a lawful secret. They insisted that Congress authorized the phone dragnet when it passed the U.S.A. Patriot Act. A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here," Judge Gerard E. Lynch declared. Consider what this means. For many years, the executive branch carried out a hugely consequential policy change that the legislature never approved. Tens of millions of innocent U.S. citizens were thus subject to invasions of privacy that no law authorized. Officials classified the program as a state secret, keeping it out of Article III courts. By doing so, they prevented the judiciary from reviewing the statutory legitimacy of NSA surveillance, subverting a core check in our system of government. The consequence: An illegal program persisted for years. This is a perfect illustration of why secret government programs are an abomination in our democracy.
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