U.S. reasserts need to keep domestic surveillance secret

by Ellen Nakashima

The Washington Post

The government Friday reasserted its claim of state-secrets privilege to keep under wraps what it says are operational details in two long-running lawsuits alleging the National Security Agency’s surveillance of Americans’ emails and phone calls is unlawful.

Federal officials also for the first time publicly acknowledged that President George W. Bush in 2001 authorized sweeping collections of Americans’ phone and Internet data — programs that operated for years solely under executive power before being brought under court and congressional oversight.

Director of National Intelligence James Clapper said in a court filing Friday that Bush authorized the collection efforts on Oct. 4, 2001, shortly after the Sept. 11 terrorist attacks.

The NSA’s data collections were part of a broader, previously disclosed counterterrorism effort that included warrantless interception of emails and phone calls. A modified, targeted form of that warrantless surveillance was approved several years ago by Congress but is still the focus of the lawsuits challenging its legality.

“In my judgment, disclosure of still-classified details regarding these intelligence-gathering activities, either directly or indirectly, would seriously compromise, if not destroy, important and vital ongoing intelligence operations,” Clapper said in the declaration filed in U.S. District Court in Northern California.

The government is asking the court to dismiss the two cases on grounds that the plaintiffs, Carolyn Jewel and Virginia Shubert, have not proven they were monitored by the NSA’s interception of their phone calls or emails. To prove that they were would require disclosure of collection techniques that could cause “exceptionally grave damage” to national security, officials said.

Jewel is suing on behalf of all AT&T customers, and Shubert is suing on behalf of all Americans.

“As a matter of course, the NSA cannot publicly confirm or deny whether any individual is or has been subject to intelligence-gathering activities, because to do so would tend to reveal actual targets or subjects,” said Frances Fleisch, acting NSA deputy director, in a declaration also filed Friday.

The government also declassified and posted eight other declarations filed in the litigation by senior intelligence officials alleging that national security would be harmed by disclosing program information.

But Cindy Cohn, legal director for the Electronic Frontier Foundation, which is representing the plaintiffs, said the government’s claim that information about whether they are indiscriminately collecting Americans’ communications is “ridiculous at this point.”

“The American people know they’re being surveilled,” she said. “The government is trying to reset the clock in order to avoid an open judicial determination about whether that surveillance is legal,” Cohn said.

The government has already suffered a setback in the case. U.S. District Judge Jeffrey White in July ruled that the government could not assert a state-secrets privilege when the underlying law, the Foreign Intelligence Surveillance Act, offers a process to hear classified evidence in closed chambers.

But government lawyers said Friday that in order for that process to apply, the plaintiffs had to first prove they were surveilled.

At issue is the NSA’s program to intercept phone and email communications without a warrant, which was placed under court supervision in 2007 and then authorized by Congress in 2007 and 2008. Jewel also is challenging the agency’s collection of Americans’ phone metadata, or call logs that include numbers dialed and call lengths and times. That program was placed under court supervision in 2006 on the basis of a statute that has been reauthorized several times since then.

The declassification of the Bush administration’s authorization of the programs came in response to White’s order to the government to review declarations filed in the case. The judge wanted to see what could be declassified in light of revelations beginning in June by a former NSA contractor, Edward Snowden, about NSA surveillance, as well as subsequent disclosures made by the government about the collection programs.

The filings come during an extraordinary week of surveillance developments in which a federal judge in Washington said the NSA’s collection of phone metadatais likely unconstitutional, a White House-appointed review panel recommended that the NSA’s storage of the data be ended, and President Barack Obama suggested he might shift custodianship of the records from the NSA to the phone companies.