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.