Feds Declassify Court Filings In Two Long-Running Cases Against NSA… But Still Say 'State Secrets' Mean Court Should Kill Cases

Legal Issues

from the no-one-believes-them dept

We’ve written a few times in the past about Jewel v. NSA, one of a few long-running (since well before the Snowden revelations) cases against the NSA over its warrantless wiretapping efforts. If you haven’t been following the case, it’s bounced around a bit, as a district court initially tossed out the case, only to have it reinstated by an appeals court. When the feds again tried to have the case dismissed claiming “state secrets,” that got soundly rejected by the district court back in July (soon after the Snowden revelations started coming out). The court also told the government to go back and review both its “state secrets” claims, as well as various classified documents that had been filed in the case, to see if it made sense to declassify them, given what had been revealed publicly in the press.

On Saturday morning, James Clapper declassified a bunch of documents, which were classified depositions in that case, and another similar case, Shubert v. Obama. The headline story there is this is the first time that it’s ever been officially declassified that, in the wake of 9/11, President Bush authorized the NSA to massively ramp up their email and phone information collection and start collecting “bulk metadata” of both phone and internet information. Here’s how Clapper describes these revelations, so take the wording with a grain of salt. They’re almost guaranteed to be misleading in some key way.

President Bush issued authorizations approximately every 30-60 days. Although the precise terms changed over time, each presidential 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.

Over time, the presidentially-authorized activities transitioned to the authority of the Foreign Intelligence Surveillance Act (“FISA”). The collection of communications content pursuant to presidential authorization ended in January 2007 when the U.S. Government transitioned the TSP to the authority of the FISA and under the orders of the Foreign Intelligence Surveillance Court (“FISC”). In August 2007, Congress enacted the Protect America Act (“PAA”) as a temporary measure. The PAA, which expired in February 2008, was replaced by the FISA Amendments Act of 2008, which was enacted in July 2008 and remains in effect. Today, content collection is conducted pursuant to section 702 of FISA. The metadata activities also were transitioned to orders of the FISC. The bulk collection of telephony metadata transitioned to the authority of the FISA in May 2006 and is collected pursuant to section 501 of FISA. The bulk collection of Internet metadata was transitioned to the authority of the FISA in July 2004 and was collected pursuant to section 402 of FISA. In December 2011, the U.S. Government decided to not seek reauthorization of the bulk collection of Internet metadata.

As we have more of a chance to dig through the newly declassified documents, we may have more to comment on, but perhaps even more insane is that, even with these newly declassified documents, the feds are clinging to the state secrets claim in seeking to make sure that the whole warrantless wiretapping programs (for both phone and internet) are never constitutionally tested.

Specifically, the government is arguing that the plaintiffs who are suing the government simply can’t prove that they were spied upon without revealing state secrets, and thus the court should not and cannot rule on this particular program. The government’s argument is as circular as it is maddening. It notes that, yes, the law says that the government “may disclose” information to an “aggrieved person” if “such disclosure is necessary to make an accurate determination of the legality of the surveillance” — which would certainly seem to apply here. Yet, it says that because the law does not require that they reveal this info, the government won’t do so, because it still regards these programs as classified (despite all the widespread media coverage about them). The government claims that even though some details have been revealed (thank you, Snowden):

The Government continues to assert privilege over certain still-classified information concerning the scope and operational details of these intelligence activities, including but not limited to information that would tend to confirm or deny that particular persons were targets of or subject to NSA intelligence activities, or that particular telecommunications providers have assisted NSA in conducting intelligence activities.

And why must they continue to pretend that these details are still secret? Because James Clapper claims:

disclosure of this still-classified information regarding the scope and operational details of NSA intelligence activities implicated by Plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States.

Basically, if we confirm details of the surveillance programs everyone’s been discussing for months in this particular court case, you’re all going to die and the terrorists will win! Boo!

The EFF is representing Jewel in the case against the NSA and put out the following statement:

“The government seems to be trying to reset the clock to before June 2013 or even December 2005,” said EFF Legal Director Cindy Cohn. “But the American people know that their communications are being swept up by the government under various NSA programs. The government’s attempt to block true judicial review of its mass, untargeted collection of content and metada by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing.”

The whole thing really is quite ridiculous. You’ve got the feds finally declassifying some documents, while trying their damnest to make sure that no court can ever test whether or not the programs they ran for a decade or more were constitutional, and pulling out the “grave damage” bullshit card to block a legal challenge on the details of programs that are already known.

Filed Under: declassified, james clapper, jewel v nsa, state secrets, warrantless wiretapping