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FRINFORMSUM 8/1/2013: Senator Al Franken Calls James Clapper’s Timely Declassification “Ad Hoc Transparency.”

August 1, 2013
James Clapper later explained his reason for responding "untruthfully" to questions about the NSA by saying it was like being asked “when he was going to stop beating his wife.”

James Clapper later explained his reason for responding “untruthfully” to Congressional questions about the NSA by saying it was like being asked “when he was going to stop beating his wife.”  (AFP Photo/Win McNamee)

Members of the Senate Judiciary Committee grilled senior intelligence officials during a tense hearing on the National Security Agency’s (NSA) surveillance programs yesterday. Senator Al Franken called the decision of the director of national intelligence, James Clapper, to declassify and release documents on the programs right before the hearing “ad hoc transparency.” Senator Franken further stated that he will introduce a bill forcing the NSA to disclose how many Americans have had their data collected and how many of those collected records have been analyzed by the NSA programs. Members of the committee further condemned Clapper, who was not in attendance, for making “untruthful” statements to Senator Ron Wyden before Congress in March, at which point Clapper stated that the NSA does not wittingly collect data on millions of Americans. Despite previous claims that the bulk data collection efforts had thwarted 54 terrorist plots, when pressed to further detail how many terrorist attacks had been disrupted by the programs, NSA deputy director John Inglis was unable to do so. Inglis stated, “[t]hat’s a very difficult question to answer,” further testifying “[t]hat’s not how these programs work.”

With both the NSA and the FISA Court that sanctions the agency’s surveillance activities under intense scrutiny, Representative Adam Schiff introduced a bill last week that would force the secret court to hear both sides of classified cases. Currently, FISA proceedings are closed to the public and the court only hears arguments from Justice Department attorneys for collecting records from telecommunication companies. However, these companies are not always willing partners in the collection efforts. Yahoo recently requested that FISA compel the disclosure of the orders forcing the company to comply with the NSA, orders that contain Yahoo’s legal arguments demonstrating the company’s “strenuous objections” to complying. In response, FISA has ordered the Justice Department to release the order forcing Yahoo’s compliance with the surveillance efforts by September 12.

Bradley Manning’s court martial came to a close this week. Manning was found guilty of 20 total charges, including five counts of espionage, computer fraud, and theft, though he was not convicted of aiding the enemy. Manning could face up to 136 years in prison in a verdict that WikiLeaks founder Julian Assange said demonstrates “dangerous national security extremism.” According to Assange’s attorney and civil liberties groups, the verdict will also make it increasingly likely that the United States will prosecute Assange as a co-conspirator.

The FBI admitted to using drones in the US at least 10 times without a warrant. Last Thursday, Senator Rand Paul published a letter from FBI assistant director Stephen Kelly stating that the FBI uses drones “in very limited circumstances to conduct surveillance when there is a specific, operational need…Since late 2006, the FBI has conducted surveillance using UAVs in eight criminal cases and two national security cases.” The FBI has stated it only needs to obtain a warrant to use a drone in cases where a person “would have a reasonable expectation of privacy,” though the bureau has not yet needed to ask for a warrant. However, all requests for drones do get reviewed by an agency lawyer and approved by senior management. Senator Paul sought the information on the FBI’s use of drones after a June statement by FBI Director Robert Mueller, claiming that the bureau uses the drones to monitor US citizens without any “operational guidelines.”

Speaking of warrants, or lacks thereof, a federal appeals court ruled 2-1 on Tuesday that government authorities may extract cellular tracking data directly from telecommunications carriers without a warrant. The ruling states that warrantless searches are “not per se unconstitutional” because location information is a business record. The appeals court ruling contradicts a previous New Jersey State Supreme Court opinion that said police must have a warrant to track a suspect’s location in real time. The appeals court decision was made on the basis of the federal Constitution, while the New Jersey decision was based on that state’s Constitution. It is yet to be seen if the Supreme Court will weigh in on the matter.

While not in front of the Senate Judiciary Committee, the CIA still isn’t having a much better week than its intelligence community counterparts. Two scathing reports surfaced this week regarding the agency. One report charged that the CIA inflated the threat an Egyptian cleric posed to justify both his 2003 kidnapping in Italy and to justify Bush’s extraordinary rendition program. The other report, a heavily redacted, unclassified CIA inspector general report released through the FOIA, indicated that the CIA is beset by bad management and “a lack of accountability.”

Finally, Marine Corps Commandant, Gen. James Amos, was found to have used “unlawful command influence” when he attempted to punish “Marines who allegedly urinated on enemy corpses in Afghanistan in 2011.” According to Marine Corps attorneys, after the incident Gen. Amos improperly imposed secret classification on the previously unclassified investigation in an effort to conceal his own wrongdoing. The improper classification came after warnings in 2012 that such behavior would backfire if it ever became public.

What a week. Happy FOIA-ing!

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