“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted…the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”
–US Senators Ron Wyden and Mark Udall
The President, the Head of the National Security Agency (NSA), the Department of Justice, the House and Senate Intelligence Committees, and the Judiciary, are intentionally keeping massive amounts of information about surveillance of US and other people secret from voters.
Additionally, some are, to say it politely, not being factually accurate in what they are telling the public. These inaccurate statements are either intentional lies meant to mislead the public or they are evidence that the people who are supposed to be in charge of oversight do not know what they are supposed to be overseeing. The most recent revelations from the Washington Post, by way of Edward Snowden, indicate the NSA breaks privacy rules or overstep its legal authority thousands of times each year. Whether people are lying or do not know what they are doing, either way, this is a significant crisis. Here are thirteen examples.
One. The Government seizes and searches all internet and text communications which enter or leave the US
On August 8, 2013, the New York Times reported that the NSA secretly collects virtually all international email and text communications which cross the US borders in or out. As the ACLU says, “the NSA thinks it’s okay to intercept and then read Americans’ emails, so long as it does so really quickly. But that is not how the Fourth Amendment works…the invasion of Americans’ privacy is real and immediate.”
Two. The Government created and maintains secret backdoor access into all databases in order to search for information on US citizens
On August 9, 2013, The Guardian revealed yet another Edward Snowden leaked document which points out “the National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant.” This is a new set of secrets about surveillance of people in the US. This new policy of 2011 allows searching by US person names and identifiers when the NSA is collecting data. The document declares that analysts should not implement these queries until an oversight process has been developed. No word on whether such a process was developed or not.
Three. The Government operates a vast database which allows it to sift through millions of records on the internet to show nearly everything a person does
Recent disclosures by Snowden and Glenn Greenwald of The Guardian demonstrate the NSA operates a massive surveillance program called XKeyscore. The surveillance program has since been confirmed by other CIA officials. It allows the government to enter a person’s name or other question into the program and sift through oceans of data to produce everything there is on the internet by or about that person or other search term.
Four. The Government has a special court which meets in secret to authorize access for the FBI and other investigators to millions and millions of US phone, text, email and business records
There is a special court of federal judges which meets in secret to authorize the government to gather and review millions and millions of phone and internet records. This court, called the Foreign Intelligence Surveillance Court (FISA court), allows government lawyers to come before them in secret, with no representatives of the public or press or defense counsel allowed, to argue unopposed for more and more surveillance. This is the court which, in just one of its thousands of rulings, authorized the handing over of all call data created by Verizon within the US and between the US and abroad to the Federal Bureau of Investigation. The public would never have known about the massive surveillance without the leaked documents from Snowden.
Five. The Government keeps Top Secret nearly all the decisions of the FISA court
Nearly all of the thousands of decisions of the FISA court are themselves classified as top secret. Though the public is not allowed to know what the decisions are, public records do show how many times the government asked for surveillance authorization and how many times they were denied. These show that in the last three years, the government asked for authorization nearly 5000 times and they were never denied. In its entire history, the FISA court has denied just 11 of 34,000 requests for surveillance.
As noted above, two US Senators warned the Attorney General ‘We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should stay when the public doesn’t know what its government thinks the law says.”
Six. The Government is fighting to keep Top Secret a key 2011 decision of the FISA court even after the court itself said it can be made public
There is an 86 page 2011 top secret opinion of the FISA court which declared some of the National Security Agency’s surveillance programs unconstitutional. The Administration, through the Department of Justice, refused to hand this over to the Electronic Frontier Foundation which filed a public records request and a lawsuit to make this public. First the government said it would hurt the FISA court to allow this to be made public. Then the FISA court itself said it can be made public. Despite this, the government is still fighting to keep it secret.
Seven. The Government uses secret National Security Letters (NSL) issued by the FBI to seize tens of thousands of records
With a NSL letter the FBI can demand financial records from any institution from banks to casinos, all telephone records, subscriber information, credit reports, employment information, and all email records of the target as well as the email addresses and screen names for anyone who has contacted that account. Those who received the NSLs from the FBI are supposed to keep them secret. The reason is supposed to be for foreign counterintelligence. There is no requirement for court approval at all. So no requests have been denied. The Patriot Act has made this much easier for the FBI.
According to Congressional records, there have been over 50,000 of these FBI NSL requests in the last three years. This does not count the numerous times where the FBI persuades the disclosure of information without getting a NSL. Nor does it count FBI requests made just to find out who an email account belongs to. These reported NSL numbers also do not include the very high numbers of administrative subpoenas issued by the FBI which only require approval of a member of the local US Attorney’s office.
Eight. The National Security Head was caught not telling the truth to Congress about the surveillance of millions of US citizens
The Director of National Intelligence, James Clapper, told US Senate on March 12 2013 that the NSA did not wittingly collect information on millions of Americans. After the Snowden Guardian disclosures, Clapper admitted to NBC that what he said to Congress was the “least untruthful” reply he could think of. The agency no longer denies that it collects the emails of American citizens. In a recent white paper, the NSA now admits they do “collect telephony metadata in bulk,” but they do not unconstitutionally “target” American citizens.
Nine. The Government falsely assured the US public in writing that privacy protections are significantly stronger than they actually are and Senators who knew better were not allowed to disclose the truth
Two US Senators wrote the NSA a letter objecting to one “inaccurate statement” and another “somewhat misleading statement” made by the NSA in their June 2013 public fact sheet about surveillance. What are the inaccurate or misleading statements? The public is not allowed to know because the Senators had to point out the details in a secret classified section of their letter.
In the public part of their letter they did say “In our judgment this inaccuracy is significant, as it portrays protections for Americans’ privacy as being significantly stronger than they actually are…” The Senators point out that the NSA public statement assures people that communications of US citizens which are accidently acquired are promptly destroyed unless it is evidence of a crime. However, the Senators wrote that the NSA does in fact deliberately search the records of American citizens and that the NSA has said repeatedly that it is not reasonably possible to identify the number of people located in the US whose communications have been reviewed under the authority of the FISA laws. The NSA responded to these claims in an odd way. They did not say publicly what the misleading or inaccurate statements were nor did they correct the record, instead they just deleted the fact sheet from the NSA website.
Ten. The chief defender of spying in the House of Representatives, the Chair of the oversight intelligence subcommittee, did not tell the truth or maybe worse did not know the truth about surveillance
Mike Rogers, Chair of the House Permanent Intelligence Subcommittee, repeatedly told Congress and the public on TV talk shows in July that there was no government surveillance of phone calls or emails. “They do not record your e-mails…None of that was happening, none of it – I mean, zero.” Later, Snowden and Glenn Greenwald of The Guardian disclosed the NSA program called X-keyscore, which intercepts 1.7 billion emails, phone calls and other types of communications each day. Now the questions swirl about Rogers, whether he lied, or was lied to by those who engaged in surveillance, or did not understand the programs he was supposed to be providing oversight to.
Eleven. The House intelligence oversight committee repeatedly refused to provide basic surveillance information to elected members of the House of Representatives, Republican and Democrat
The House intelligence oversight committee refused to allow any members of Congress outside the committee to see a 2011 document that described the NSA mass phone record surveillance. This has infuriated Republicans and Democrats who have tried to get basic information to carry out their mandated oversight obligations.
Republican Representative Morgan Griffith of Virginia wrote the House Committee on Intelligence on June 25, 2013, July 12, 2013, July 22, 2013, and July 23 2013 asking for basic information on the authorization “allowing the NSA to continue collecting data about Americans’ telephone calls.” He received no response to those requests.
After asking for basic information from the House Committee about the surveillance programs, Democrat Congressman Alan Grayson was told the committee voted to deny his request on a voice vote. When he followed up and asked for a copy of the recorded vote he was told he could not get the information because the transcript of the committee hearing was classified.
Twelve. The paranoia about secrecy of surveillance is so bad in the House of Representatives that an elected member of Congress was threatened for passing around copies of the Snowden disclosures which had been already printed in newspapers worldwide
Representative Alan Grayson was threatened with sanctions for passing around copies of the Snowden information on the House floor, the same information published by The Guardian and many other newspapers around the world.
Thirteen. The Senate oversight committee refused to allow a dissenting Senator to publicly discuss his objections to surveillance
When Senator Ron Wyden (D-OR) tried to amend the surveillance laws to require court orders before the government could gather communications of American citizens and to disclose how many Americans have had their communications gathered, he lost in a secret 2012 hearing of the Senate Select Committee on Intelligence. He was then also prohibited from publicly registering or explaining his opposition for weeks.
These attempts to keep massive surveillance secrets from the public are aggravated by the constant efforts to minimize the secrets and maximize untruths.
Most notably, despite all this documented surveillance, on August 6, 2013, the President said on the Jay Leno show “We don’t have a domestic spying program.” This is, to say it most politely, not accurate. Some commentators think the government is perversely tying itself in knots and twisting the real meaning of words with flimsy legal arguments and irrational word games. Others say the President is engaged in “Orwellian newspeak.” Finally, more than a few say the President was not telling the truth.
Others who are defending the surveillance may not actually know what is going on but think they do because the government, like the President, is telling them there is nothing to worry about. For example, Senator Diane Feinstein, Chair of Senate Intelligence Committee, the congressional oversight committee which is to protect people from unlawful spying, and another chief defender of surveillance, publicly responded to Edward Snowden’s claims to have the ability to wiretap anyone if he had their personal email by saying, “I am not a high-tech techie, but I have been told that is not possible.” How that squares with revelations about the Xkeyscore program is not known. She also stated her committee’s position about protecting the privacy of people against government surveillance, “We’re always open to change, but that does not mean there will be any.”
Thomas Paine said eternal vigilance is the price of liberty.
President Obama just promised the nation that he would set up an independent group of outside experts to “step back and review our capabilities – particularly our surveillance technologies.”
Days later Obama appointed the Director of National Intelligence James Clapper, the same person who has admitted he did not tell Congress the truth about the program, to establish a review group to assess whether surveillance is being done in a manner that maintains the public trust. After an uproar about the fox guarding the henhouse, the White House reversed itself and said Clapper will not choose the members of the group after all.
Who these members will be has not been made public as of the time this is written. Another secret? Stay vigilant!
Bill Quigley is a law professor at Loyola University New Orleans and an active human rights advocate with the Center for Constitutional Rights. A version with full sources is available. You can write Bill at [email protected]