FRINFORMSUM 9/19/2013: Phone Companies Paid Millions to Cooperate with NSA and Accuse Tech Companies of “Grandstanding,” Important Legal Victory to Shed Light on Security Procedures at Guantanamo, and More
The Foreign Intelligence Surveillance (FISA) court released a previously classified opinion this week asserting the constitutionality of the National Security Agency’s (NSA) controversial bulk phone log collection program. The 29-page opinion, written by Judge Claire V. Eagan, is the most extensive explanation yet for the massive program, defending the practice on the grounds that it is sanctioned by a provision of the Patriot Act, and that it does not violate the Fourth Amendment since it does not eavesdrop on contents of phone calls. Judge Eagan, a 2001 George W. Bush appointee assigned to the FISA court this year by Chief Justice Roberts, wrote that “any decision about whether to keep it was a political question, not a legal one.” Jameel Jaffer, a senior attorney at the American Civil Liberties Union (ACLU), was unconvinced by the court’s opinion, saying the opinion “only confirms the folly of entrusting privacy rights to a court that hears argument only from the government.”
The ACLU isn’t the only one not reassured by Judge Eagan’s opinion on the program’s legality. Senators Mark Udall (D-Colo.) and Ron Wyden (D-Ore.), members of the Senate Select Committee on Intelligence, issued a joint statement this week regarding admissions by senior intelligence officials that they did not fully understand the entirety of the NSA’s bulk collection programs. After revelations that intelligence officials routinely mislead the FISA court and consistently violated the court’s orders, the Senators argue that, “[i]f the assertion that ineptitude and not malice was the cause of these ongoing violations is taken at face value, it is perfectly reasonable for Congress and the American people to question whether a program that no one fully understood was an effective defense of American security at all. The fact that this program was allowed to operate this way raises serious concerns about the potential for blind spots in the NSA’s surveillance programs. It also supports our position that bulk collection ought to be ended.”
Judge Eagan’s opinion also revealed that no telecommunications company has ever challenged the legality of an NSA surveillance request. While technology companies like Yahoo, Google, and Microsoft have all filed petitions with the FISA court to disclose records proving their objection to the programs, the NSA pays AT&T, Sprint, and Verizon hundreds of millions of dollars for their willing compliance. Matthew Aid argues this means that these private companies “now actually do much of NSA’s SIGINT collection work, for which NSA pays them tens of millions of dollars every year. And the irony is that we American taxpayers pay for this through a series of surcharges, fees and taxes tacked on to our AT&T, Verizon and Sprint long-distance telephone bills.” A Verizon executive went so far as to say tech companies were “grandstanding” in public about their aversion to cooperating with the NSA. However, despite the controversy surrounding the NSA’s surveillance practices, President Obama’s review panel created specifically to reform the NSA’s programs did not discuss making any substantive changes during the panel’s first meeting.
In non-NSA news, while the NSA has the budget to pay telecommunications companies $278 million for user data, the FBI is facing serious government spending cuts. The agency has long agonized over the anticipated budget cuts, and recently decided that the bureau will be forced to shut down their headquarters and nation-wide offices for 10 days over the course of the next year. “Besides the short-term effect on morale, response time and focus on the mission, this will degrade the capabilities of the bureau in the long term as well,” according to former FBI deputy director Tim Murphy. “I think the long-term impact is not being considered by those having this budget debate in Congress. Mistakes will be made down the road because of these cuts, and they will be able to be traced back to these cuts.”
The ACLU is challenging the CIA’s refusal to release any documents on its use of drones in targeted killings. Since the ACLU submitted a FOIA request to the CIA for use of drones for such practices, the CIA has continually refused to list or describe any documents in its possession –in direct opposition to a federal court’s orders. The CIA is not only ignoring the federal courts on the basis that releasing any information would endanger national security, it is continuing to engage in what an appeals courts calls a “pattern of strategic and selective leaks at very high levels of the Government,” prompting the ACLU to state in its brief, “[i]ndeed, the CIA’s response is so obviously deficient that one can only assume that the CIA’s goal is not to prevail on this motion but simply to delay as long as possible the day on which the agency will finally be required to explain what documents it is withholding and why.”
Finally this week, in an important victory for transparency advocates and others, a federal judge ordered details of detainee search procedures at Guantanamo to be made public. The decision was made in response to investigative journalist Jason Leopold’s request to unseal the document, which details search procedures that were “unlawfully designed to block [detainee] access to counsel,” despite the Department of Justice’s claims that the document needed to remain protected. The judge argued that the government “failed to explain specifically enough why the information needs to be kept under wraps,” and ordered the full version of the detainee search procedures document to be released.