By William Fisher
Last week's release of 900 pages of U.S. Government documents dealing with the implementation of the nation's primary surveillance law suggests that the government has been systematically violating the privacy rights of U.S. citizens.
How many citizens is unclear, since the Government’s documents were extensively redacted. The previously secret internal documents were obtained through a court battle by the American Civil Liberties Union (ACLU).
The government declined to disclose the numbers of Americans who had their telephone calls, e-mail, or other communications intercepted under the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008. They also declined to discuss any specific abuses, the ACLU said.
The 900 documents were delivered in keeping with a previously agreed schedule.
Here’s what we know now:
Alex Abdo, a senior attorney with the ACLU, told IPS, "for two years now, the government has had the authority to engage in the dragnet and unconstitutional surveillance of Americans' communications with little to no oversight of its actual surveillance decisions."
He added, "This week's disclosures confirm that the government repeatedly abused even the minimal, and unconstitutional, limits set out in this new surveillance authority. Although we know that abuses occurred, the government has withheld all critical details about them."
"As Congress considers whether to renew or modify the FISA Amendments Act in 2012, the government must make additional information public to allow an informed debate about its use and abuse of this controversial surveillance power," he said.
The lawsuit seeks to enforce a November 2009 Freedom of Information Act (FOIA) request for records related to the government's interpretation and implementation of the FAA, including reports and assessments mandated by the law concerning how the FAA is being used, how many Americans are affected by this sweeping spying regime and what safeguards are in place to prevent abuse of Americans' privacy rights.
Prior to the government’s release of last week’s 900 pages, it had not released any of the records requested. The lawsuit alleges that the requested records are needed to enable informed public debate about whether the FAA - which expires in 2012 - should be repealed, amended or extended.
The ACLU filed today's FOIA lawsuit against the Office of the Director of National Intelligence, Justice Department, National Security Agency and Defense Department in the U.S. District Court for the Southern District of New York.
In July 2008, the ACLU and the NYCLU filed a landmark lawsuit to stop the government from conducting surveillance under the FAA on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and e-mail communications with colleagues, clients, journalistic sources, witnesses, experts, foreign government officials and victims of human rights abuses located outside the United States.
A district court dismissed the case, ruling that the plaintiffs could not challenge the secret surveillance law because they could not prove that their own communications had been monitored under it.
The ACLU and NYCLU appealed that ruling and have asked a federal appeals court to reinstate the case. The groups argued that, because of the secret nature of the FAA, the law may never be subject to judicial review at all if Americans are prohibited from challenging it unless they can show that their own communications have been collected.
"It is unfortunate that once again we have to sue over the secrecy that continues to shroud so much of our government's work," said NYCLU Associate Legal Director Christopher Dunn. "While we have seen recent improvements in transparency, much more remains to be done before we have a truly open government."
Attorneys on the FOIA case are Alex Abdo and Jameel Jaffer of the ACLU and Dunn and Arthur Eisenberg of the New York Civil Liberties Union
However, routine oversight reports carried out by the government itself acknowledge ongoing violations of legal parameters and civil rights that limit when Americans are targeted and minimize the amount of data collected.
As noted by the Washington Post, "The documents note that although oversight teams did not find evidence of "intentional or willful attempts to violate or circumvent the law . . . certain types of compliance incidents continue to occur," as a March 2009 report stated."
The Post goes on to assert that the unredacted portions of the reports refer only elliptically to what those actions were, but the March 2009 report stated that, "information collected as a result of these incidents has been or is being purged from data repositories."
However, no matter how small or large, the ACLU told IPS that the track-record thus far underscores "the need for continued focus on measures to address underlying causes."
The ACLU finds violations of the FISA Amendments Act's "targeting and minimization procedures . . . likely means that citizens and residents' communications were either being improperly collected or 'targeted' or improperly retained and disseminated."
The Foreign Intelligence Surveillance Act of 1978 is an Act of Congress which prescribes procedures for the physical and electronic surveillance and collection of "foreign intelligence information" between "foreign powers" and "agents of foreign powers" (which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control).
The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government. An overhaul of the bill, the Protect America Act of 2007 was signed into law on August 5, 2007. It expired on February 17, 2008. The FISA Amendments Act of 2008 passed by the United States Congress on July 9, 2008.
Lawmakers amended the 1978 law in 2008 to “broaden and clarify legal authorities” after the Sept. 11, 2001, terrorist attacks and advances in Internet communications prompted fresh concerns over expanded surveillance powers.
The ACLU, human rights activists and other parties sued, charging that the new law is unconstitutional, violating the Fourth Amendment's prohibition of unreasonable searches.
A U.S. district judge dismissed the case, but the ACLU appealed the verdict, which is still pending. Meantime, the ACLU has pursued the related Freedom of Information Act request.