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December 23, 2013

Obama Administration Tries to Thwart Ruling on NSA Spying

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The White House is playing the national security card in a bid to keep a federal judge from deciding if the warrantless surveillance operations of the National Security Agency are illegal.

The U.S. government has filed papers with the Northern District of California in a bid to prevent additional information about the NSA’s surveillance and data collection programs from going public in its long-running litigation with the Electronic Frontier Foundation (EFF).

The White House contends that, despite the airing of the NSA’s secrets over the past six months by former contractor Edward Snowden, disclosing additional information in court is a security risk.

“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,” director of national intelligence James R. Clapper wrote.

Clapper said he was claiming the state secrets privilege, which permits the government to try to impede information from being revealed in court even if it comes to dismissing the case. In fact, the Department of Justice wants judge Jeffrey S. White to dismiss the case without ruling on if the NSA’s programs contravene the First or Fourth Amendment.

The filings also revealed the NSA’s bulk data collection of American’s Internet and phone activity was sanctioned by President George W. Bush shortly after the terrorist attacks in New York and Washington D.C. on Sept. 11, 2001.

Clapper, in a statement posted Saturday on the IC on the Record website, said Bush authorized “the Secretary of Defense to employ the capabilities of the Department of Defense, including the National Security Agency (“NSA”), to collect foreign intelligence by electronic surveillance in order to detect and prevent acts of terrorism within the United States.”

“President Bush authorized NSA to collect: (1) the contents of certain international communications, a program that was later referred to as the Terrorist Surveillance Program (“TSP”), and (2) telephony and Internet non-content information (referred to as “metadata”) in bulk, subject to various conditions,” Clapper wrote, adding that Bush issued authorizations every 30 to 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,” Clapper said. “NSA also applied additional internal constraints on the presidentially-authorized activities.”

A few years later, such surveillance transitioned from the authority of the president to that of the Foreign Intelligence Surveillance Court (FISC). The bulk collection of telephony metadata transitioned to the FISC’s authority in May 2006 and the bulk collection of Internet metadata in July 2004.

The EFF is taking a dim view of the government’s latest filings.

“The government seems to be trying to reset the clock to before June 2013 or even December 2005,” EFF legal director Cindy Cohn said in a statement.  “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 metadata by pretending that the basic facts about how the spying affects the American people are still secret is both outrageous and disappointing.”


Jennifer Cowan is the Managing Editor for SiteProNews.