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SPOKANE, Washington, Sep 13 2013 (IPS) - After more than two years of fighting to prevent their release, the Department of Justice has released numerous documents related to domestic spying on U.S. citizens by the U.S. National Security Agency (NSA) and the previously-secret court opinions that authorised the NSA’s controversial programmes to go forward.
On the evening of Sep. 10, the Justice Department released the documents to the American Civil Liberties Union and the Electronic Frontier Foundation (EFF), which had sued to force their release. Both organisations also have separate litigation against the NSA challenging its domestic spying programmes altogether.
The director of national intelligence, James Clapper, has also published the documents on the DNI website.
At issue is a telephony metadata programme, through which the NSA collects so-called “metadata” regarding every U.S. phonecall. The programme was revealed earlier this year by whistleblower Edward Snowden, who is currently living in Russia under the status of political asylum.
Some of the most significant documents that are part of the release are rulings by the Foreign Intelligence Surveillance Court (FISC) that authorised the telephony metadata programme to move forward over the last several years.
The document release “reveals a few things”, Trevor Timm, a policy analyst for EFF, told IPS.
“First the NSA admitted to the court [FISC] in 2009 it had not a single person in the NSA who was able to adequately understand their surveillance system, which is an extraordinary admission because… the surveillance system exists solely because the court authorised it based on the NSA’s explanations,” he said.
“This shows NSA is in charge of itself. They could get away with anything and not tell the court and there would be no repercussions or way for anybody to find out it,” Timm said.
On Jul. 19, the court ordered the Justice Department to meet with the parties seeking access to the FISC records and other records, to negotiate the voluntary release of as many records as possible.
According to EFF, some records have still not been released, but at least this has narrowed the scope of the records dispute remaining before the courts.
EFF is still waiting on at least one crucial FISC opinion that has yet to be released, specifically regarding the court’s interpretation of the word “relevant”. The word “relevant” appears in Section 215 of the amended Patriot Act and is the NSA’s justification for collecting all U.S. telephony metadata. The NSA argues every citizens’ metadata is relevant to national security.
“We still think we’re going to get that [document]. That will have the most direct effect on the lawsuit [challenging the programme],” Timm said.
In responding to the Jul. 19 court order, the Justice Department said it was able to release more records than it had been previously because of an Aug. 9 directive by President Barack Obama to release “as much information about these programmes as possible”.
However, EFF disputes the notion that the government has released the information voluntarily.
“The presidential directive was not the reason they started releasing information. It’s because the Court ordered them to start releasing information,” Timm said. “Because of the presidential directive, those negotiations turned out better than they normally would have.”
“They fought tooth and nail to keep this information from getting out to the public. They wouldn’t even tell us the number of pages involved. They said if we release even one word of this, it would cause significant and articulable harm to national security,” Timm said.
“Since the Snowden revelations, that’s been… [revealed] as ridiculous. Basically they’re just implementing public laws and explaining the legal standards for which they carry out these laws – this stuff should’ve been public years ago,” Timm said.
In January 2009, the NSA revealed to the court that it had failed to follow its own procedures to minimise the use of citizens’ constitutionally protected private information. The NSA had violated court orders on numerous occasions in which it queried citizens’ information without any suspicion of a connection to terrorism.
The NSA had a list of approximately 18,000 phone numbers that they had been not just collecting but using, but they only had reasonable suspicion of terrorist links for around 2,000 of them.
A Mar. 3, 2009 order, by FISC Judge Reggie B. Walton, obtained by the organisations, describes a federal agency run amok.
“The court at first authorised the collection of bulk metadata in 2006,” Patrick Toomey, attorney and national security fellow at the American Civil Liberties Union’s National Security Project, told IPS.
“In 2009 it describes the restrictions, the very rigorous restrictions that the court imposed on the use of this phone record metadata, and it describes the ways the government had defied or failed to comply with those restrictions.
“The most disturbing point probably that came out of these documents was the extent of the government’s failure to comply with the court order,” Toomey said.
The NSA argues there is no expectation of privacy for metadata under the Fourth Amendment because it is owned by the phone companies.
“They’ve clung to a case from 1970s that allowed law enforcement to collect one phone call for one person,” Timm said, referring to Smith v. Maryland, a 1979 case decided by the Supreme Court.
Collecting the telephony metadata of all U.S. residents is “not exactly what the U.S. Supreme Court intended or knew could happen when that decision was made,” Timm said.
The NSA has also argued that it is not violating citizens’ rights by merely collecting and storing citizens’ telephone metadata because it only uses the information when it needs to.
But the American Civil Liberties Union disagrees with that logic. “It doesn’t matter what the government does with the information. For Fourth Amendment and privacy purposes, the government has taken for itself information that discloses personal details, political, religious, even medical,” Toomey said.
“If the government took your diary and promised not to read it, it would still be a search, and not just because of your property interest in the paper,” Toomey said.
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