FRINFORMSUM 12/19/2013: NSA’s Bulk Data Collection “Almost Certainly Unconstitutional,” the Senate Intel Committee Squares off with the CIA, EPA Employee Pretended to Work for CIA to Miss Two Years of Work, and More.
Federal Judge Richard J. Leon of the U.S. District Court for the District of Columbia ruled Monday that the National Security Agency’s (NSA) bulk collection of Americans’ phone records is “almost certainly unconstitutional.” In his 68-page ruling, Leon said “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 and analyzing it without prior judicial approval.” On Tuesday one of the NSA’s staunchest supporters, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA), said she is looking forward to the Supreme Court determining the constitutionality of the program for itself. Feinstein, hedging her bets, also said she believed the surveillance program was important, but not indispensable.
The surveillance task force ordered by President Obama to review the NSA’s domestic programs in the wake of Edward Snowden’s leaks has delivered its final report to the White House. The report recommended more than 40 changes to the NSA, however no details of those changes were provided, with the White House only announcing it would finish reviewing the report and release the results in January. One change that won’t be made to the agency is splitting up leadership of the NSA and U.S. Cyber Command. The White House decided to keep the two positions under the same command despite concerns that combining them places too much power in one person. This decision also assures a civilian won’t be heading the spy agency anytime soon, meaning that long-time NSA deputy director John Ingles is no longer General Keith Alexander’s slated replacement.
The NSA has bore the brunt of widespread criticism since revelations of its surveillance practices this summer, which is even taking a toll on the agency’s staffing. A recent Foreign Policy article reported that job applications to the agency are down by more than a third, and retention rates are also declining, shifting the work culture of an agency that has traditionally had life-long employees. In an effort to boost its image, the NSA granted an interview with CBS’ television news program ’60 Minutes,’ which aired on Sunday night. However, the attempt at a public relations coup faltered when media outlets questioned the slant of many of the ’60 Minutes’ reports’ key facts, and when it was learned that the segment’s host, John Miller, was “an intelligence community veteran and former public affairs officer for the Federal Bureau of Investigation, who failed to disclose to viewers that he was eyeing a return to his career in law enforcement.”
The CIA is currently involved in a heated debate with the Senate Intelligence Committee over the CIA’s internal counter-terrorism practices report “that lawmakers believe is broadly critical of the C.I.A.’s detention and interrogation program but was withheld from congressional oversight committees.” A lawyer for the Department of Justice even told committee members “that crucial legal opinions about intelligence matters were beyond the scope of the committee.” The debate comes at the same time the two are battling over the release over Committee’s own 6,000-page report on interrogation practices that was completed last December but has yet to be declassified. Officials familiar with the Senate report say it is “unsparing in its criticism of the now-defunct interrogation program and presents a chronicle of C.I.A. officials’ repeatedly misleading the White House, Congress and the public about the value of brutal methods that, in the end, produced little valuable intelligence.”
The kidnapping of Robert Levison, a retired FBI agent who disappeared in Iran six years ago on an unauthorized mission for the CIA, has led to major changes at the agency. After emails and other documents surfaced proving Levison was in Iran for the CIA, “[t] he agency changed the rules outlining how analysts conduct business with contractors, including academics and other subject-matter experts who don’t work at the CIA.” While it may sound far-fetched, free-lancing for the CIA is such an effective cover that one of the Environmental Protection Agency’s (EPA) highest-paid civil servants, John C. Beale, skipped work –the equivalent of two and half years– for over a decade by pretending he worked for the CIA. Beale even had the EPA reimburse him for time off visiting his family by claiming he was working remotely on a research project for the spy agency.
In FOIA news, last week a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard the Archive’s arguments for public release of the last secret volume of the CIA’s internal history of the 1961 Bay of Pigs disaster, which the CIA has long-argued would “confuse the public” if released. Judge Judith Rogers responded to that absurd claim by saying she did not “find that totally persuasive.” In another recent FOIA victory, U.S. District Judge Ellen Seal Huvelle ruled the unclassified, widely-circulated Presidential Policy Directive on Global Development is not exempt from FOIA. The administration argued that the directive is protected under the FOIA’s executive communication privilege, but Judge Huvelle strongly disagreed, writing “[t]he government appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight, to engage in what is in effect governance by ‘secret law.'”
In declassification news, the latest posting from the Archive’s Nuclear Vault on nuclear proliferation contains newly declassified documents on South Africa’s Cold War-era intentions and capabilities, competing pre-Iraq War claims within the intelligence community about specialized aluminum tubes Iraq tried to procure, and much more. Give the whole posting a read! And just in case you need some fun declassified documents to read around the Yule log, the Archive just got the NSA’s “Holiday Talking Points” officially released thanks to our recent FOIA request (the corner stamp denotes official release).
Don’t miss the sordid tale of a the senior Environmental Protection Agency official who skipped work for over a decade by pretending he worked for the CIA. While the audacity of John C. Beale (sentenced to 32 months in prison) is certainly notable, the story also demonstrates that government secrecy inherently hinders oversight and accountability.
Finally, checkout the rejuvinated FOIA subreddit: reddit.com/r/FOIA
As always, happy FOIA-ing!