Obama’s Director for National Intelligence, James Clapper, has declassified new documents that reveal how the NSA was first given the green light to start collecting bulk communication data in the hunt for Al-Qaeda terrorists after 9/11.
President Barack Obama’s administration has for the first time publicly confirmed “the existence of collection activities authorized by President George W. Bush,” such as bulk amounts of Internet and phone metadata, as part of the “Terrorist Surveillance Program” (TSP).
The disclosures are part of Washington’s campaign to justify the NSA’s surveillance activities, following massive leaks to the media about the classified programs by former NSA contractor Edward Snowden.
Clapper explained on Saturday that President George W. Bush first authorized the spying in October 2001, just weeks after the September 11 attacks.
It was revealed that President Bush issued authorizations every 30-60 days. Each authorization required “the minimization of information collected concerning American citizens to the extent consistent with the effective accomplishment of the mission of detection and prevention of acts of terrorism within the United States. NSA also applied additional internal constraints on the presidentially authorized activities.”
The presidentially authorized activities were later shifted to the authority of the Foreign Intelligence Surveillance Act (FISA), a secret court which considers government requests for electronic surveillance for intelligence-related purposes. The collection of communications content pursuant to presidential authorization ended in 2007, when the government switched TSP to FISA’s authority, and put it under the orders of the Foreign Intelligence Surveillance Court (FISC).
According to Clapper, content collection is currently conducted pursuant to section 702 of FISA. In December 2011, the US government “decided to not seek reauthorization of the bulk collection of Internet metadata.”
The documents released also feature legal arguments by former national intelligence directors to keep NSA spying activities secret, in what has become the “longest running case against the government seeking to stop the domestic spying program,” filed in 2006 as Shubert v. Bush, and currently known as Shubert v. Obama.
A civil liberties group, the Electronic Frontier Foundation, hailed it as “a class action on behalf of all Americans against the government, alleging a massive, indiscriminate, illegal National Security Agency (NSA) dragnet of the phone calls and email of tens of millions of ordinary Americans.”
Shubert seeks to hold accountable “the architects of the dragnet,” including NSA Director General Keith Alexander, former NSA Director General Michael Hayden, former Attorney General Alberto Gonzales and former Attorney General John Ashcroft.
For seven years, the government attempted to dismiss the case on grounds of national security.
Former director of National Intelligence Dennis Blair argued back in 2009 that revealing details about how sensitive information was collected could damage the hunt for terrorists.
“To do so would obviously disclose to our adversaries that we know of their plans and how we may be obtaining information,” Blair said.
In July 2013, a federal district judge rejected the argument, and has permitted the case to go forward against all defendants.
Meanwhile, in response to the public’s concern about privacy violations, Obama said Friday he would consider some changes to NSA’s bulk collection of Americans’ phone records.
“The question we’re going to have to ask is can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that, in fact, the NSA is doing what it’s supposed to be doing,” Obama said. “I have confidence in the fact that the NSA is not engaging in domestic surveillance or snooping around, but I also recognize that as technologies change and people can start running algorithms and programs that map out all the information that we’re downloading on a daily basis into our telephones and our computers.”
On Monday, a US District Court Judge ruled that the NSA surveillance program, which collects records and phone numbers in every phone call made in the US, allegedly in search for connections to suspected terrorists, was probably unconstitutional. Judge Richard Leon said that the agency’s notorious program violates the Constitution’s Fourth Amendment meant to protects Americans against unreasonable searches and seizures.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” the judge said in his ruling. “Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”
He pointed out that when constitutional rights are involved, “Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret.”
“We’ve seen the opinion and are studying it. We believe the program is constitutional as previous judges have found,” the Justice Department responded in a statement.
The judge also noted that there was little evidence that any terror plot had been successfully impeded by the controversial program, known as Section 215 of the USA Patriot Act.
A task force appointed by Barack Obama to review the NSA surveillance program recently came to the conclusion that the data collection program was “not essential to preventing attacks”, and suggested some 46 changes to NSA operations.
Although the advisory panel recommended continuing the program, it required a court order for each NSA search of the phone records database, and keeping that database in the hands of a third party, rather than the government.
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