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Ackerman reports: "The court that oversees US surveillance has ordered the government to review for declassification a set of secret rulings about the National Security Agency's bulk trawls of Americans' phone records, acknowledging that disclosures by the whistleblower Edward Snowden had triggered an important public debate."

NSA Whistleblower, Edward Snowden. (photo: Guardian UK)
NSA Whistleblower, Edward Snowden. (photo: Guardian UK)


FISA Judge: Snowden's NSA Disclosures Triggered Important Debate

By Spencer Ackerman, Guardian UK

14 September 2013

 

he court that oversees US surveillance has ordered the government to review for declassification a set of secret rulings about the National Security Agency's bulk trawls of Americans' phone records, acknowledging that disclosures by the whistleblower Edward Snowden had triggered an important public debate.

The Fisa court ordered the Justice Department to identify the court's own rulings after May 2011 that concern a section of the Patriot Act used by the NSA to justify its mass database of American phone data. The ruling was a significant step towards their publication.

It is the second time in a week that a US court has ordered the disclosure of secret intelligence rulings. On Tuesday, a federal court in New York compelled the government to declassify numerous documents that revealed substantial tension between federal authorities and the surveillance court over the years.

On Thursday, James Clapper, the director of national intelligence, conceded that the NSA is likely to lose at least some of its broad powers to collect data on Americans.

He acknowledged that Snowden's disclosures had prompted a necessary debate: "As loath as I am to give any credit to what's happened here, I think it's clear that some of the conversations this has generated, some of the debate, actually needed to happen.

"If there's a good side to this, maybe that's it."

On Friday, Judge Dennis Saylor ruled that the American Civil Liberties Union and its co-litigants had the right to seek disclosure of the Fisa court's interpretations of section 215 of the Patriot Act.

Rejecting a contention from the Justice Department, Saylor ruled that keeping the documents secret from the ACLU "constitutes a concrete and particularized injury in fact to the ACLU".

The judge said that the publication in June of a section 215 order - the Guardian's disclosure that the NSA had successfully compelled Verizon to hand over the metadata of all its customers' calls - meant that more secret rulings should be published.

"The unauthorized disclosure in June 2013 of a section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about section 215," Saylor wrote.

Further publication of the court's rulings "would contribute to an informed debate," he said. "Publication would also assure citizens of the integrity of this court's proceedings."

In his Friday ruling, Saylor did not definitively order the declassification of all the court's "opinions evaluating the meaning, scope and constitutionality of Section 215 of the Patriot Act," as the ACLU sought.

A procedural hurdle meant that he could not order the declassification of many of the documents, since the ACLU earlier sought their release under the Freedom of Information Act through a different court, in a case that is continuing.

Should the ACLU lose that case, in the southern district of New York, Saylor ruled that it can return to the Fisa court to seek declassification of those surveillance documents.

While technically Saylor dismissed the ACLU's motion for the full disclosure of documents, he wrote: "Such dismissal is without prejudice to the reinstatement of a motion for publication with the [Fisa court] after resolution of the FOIA litigation in the southern district of New York and any appeal therefrom."

The ACLU hailed Saylor's ruling as a victory. "The opinion recognizes the importance of transparency to the debate about NSA spying," said Jameel Jaffer, the ACLU's deputy legal director.

"We've been asking for some time for a declassification review for all these opinions relevant to section 215, and we're gratified that the court has required the government to conduct that review."

Saylor ruled on Friday that the Justice Department must identify which section 215 rulings are not covered by the ACLU's simultaneous litigation "and propose a timetable to complete a declassification review and submit to the court its proposed redactions."

It is unclear which Fisa court opinions about bulk phone records surveillance will be identified for declassification. Neither Saylor nor the ACLU knew.

The ACLU filed its Freedom of Information Act request in May 2011, so the surveillance opinions the Justice Department will identify for declassification review under Saylor's ruling must come from after that date.

The Justice Department, which declined comment, has until 4 October to identify the relevant secret surveillance documents.

Saylor's ruling comes days after another ACLU legal success. On Tuesday, the southern district of New York compelled the government to declassify numerous Fisa court, NSA, FBI and Justice Department documents.

Among the revelations contained in Tuesday's round of declassified documents were that the NSA had misrepresented the extent of its activities in collecting Americans' phone records and violated court-ordered restrictions on the ability of the government to access such data.

After learning from the NSA that government analysts improperly accessed "thousands" of Americans' data from 2006 to 2009, Judge Reggie Walton substantially restricted the government's access to the databases for much of 2009, and questioned the viability and basic value of the effort.

The ACLU is seeking more: namely, Fisa court "opinions evaluating the meaning, scope and constitutionality of section 215 of the Patriot Act."

Among other documents, the ACLU is seeking the secret Fisa court ruling, or set of rulings, from the mid-2000s that authorized the NSA's mass collection of American phone records, which the NSA had already been collecting for years.

The court ruled that the government had the power to collect the phone records because of the so-called "business records provision" in section 215 of the Patriot Act, which permits the government to collect "tangible things" that are "relevant" to terrorism investigations.

The court's secret interpretation surprised many legal experts when the Guardian exposed it in June, since the act of collecting the phone data proceeds before any specific "ongoing" terrorism investigation, and the records collected involve millions of Americans who are not under suspicion of wrongdoing.

It is possible Saylor's ruling on Friday will aid the ACLU's case in the southern district of New York, as the judge found the ACLU both has the right to seek the records and considered the ACLU to have made a compelling case for their disclosure.

"Atmospherically, it's important that the Fisa court seems to recognize the public has a right to more information of the government's surveillance activities," Jaffer said.

Saylor's opinion follows several legislative maneuvers scheduled for this fall in both the House and Senate to compel greater disclosure of the government's interpretations of the Patriot Act justifying the bulk phone records collection.

Clapper, the director of national intelligence, conceded on Thursday that these were likely to succeed. "It's very clear that - to the extent we get to keep these tools at all - they're going to be legislatively amended," Clapper told a Washington conference on Thursday.


 

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+57 # jwb110 2013-09-14 11:22
Thank the gods that Snowden let some air out of this bloated attack on Constitutional Rights for Americans. He has done a service to the Republic that far outweighs all the crap he has been "accused of" and not found "guilty of."
As far back as Lincoln, a beyond that the founding father, knew that the Nation would fall from within if it were to fall. To make it necessary for a citizen to have to flea the country because he showed the nation the truth is the worst violation of civil rights I can come up with.
 
 
+69 # Milarepa 2013-09-14 11:32
About time Snowden gets credit where credit is due him. He wrote, and is writing, history. At some point in the future Edward Snowden will be an important historical figure on the side of freedom and justice!
 
 
+47 # kumquat 2013-09-14 13:27
Quoting Milarepa:
About time Snowden gets credit where credit is due him. He wrote, and is writing, history. At some point in the future Edward Snowden will be an important historical figure on the side of freedom and justice!

Sadly no one seems to recognize that Manning did the same service for the USA , at greater personal loss, yet no one gives praise, recognition or gratitude for that price, that sacrifice, that cost....Just how un-greatful are we? Jeeze!
 
 
+12 # Kathymoi 2013-09-14 16:10
He seems to be forgotten in the press now, and it is, in my opinion, unfortunate, that after his trial, he himself changed the topic. The last mentions of his name in the press were not about the contribution he had made to disclosure of war crimes and asking for a review of the purpose and processes of war, but were about his personal life and his gender identification.
 
 
+2 # tigerlille 2013-09-16 03:19
I think that the opportunity to under go gender change treatment will make Manning's life tolerable while incarcerated. She's the one who has been sentenced to a lengthy prison term, and I think that she has every right to pursue her own happiness as best she can, given the circumstances. She has suffered enough. We should try to be supportive of her personal decisions, instead of expecting her to uphold some political agenda of our own.
 
 
+37 # kumquat 2013-09-14 13:30
And Manning?? How can you forget that sacrifice, made for all of us, our nation and our constitution - that SCOTUS is working to dismantle???
 
 
+1 # ghostperson 2013-09-15 17:54
Working to? Has dismantled.
 
 
+8 # cordleycoit 2013-09-14 12:11
Looks like our spies,who we pay to spy on us are able to alienate a judge. Looks government for and by the stooges.
 
 
+19 # reiverpacific 2013-09-14 12:15
I'f you believe that the national Spy Agency will have any respect for whatever rulings emerge, especially with the ACLU behind them, I've got some oceanfront property in Montana----!
It's out of control and the genie raoms at will.
 
 
+29 # PABLO DIABLO 2013-09-14 12:37
THANK YOU ACLU.
 
 
+9 # hutchr 2013-09-14 14:26
This is a related question that I have never been able to get an answer to. Who were the guys in tee shirts and dark glasses who escorted Manning to and from court during his trial. I never saw military uniforms on any of his "keepers". Does someone have an answer?
 
 
+8 # Annietime13 2013-09-14 15:01
Michael Hastings
Michael Hastings
Michael Hastings
 
 
+11 # Kathymoi 2013-09-14 16:12
Yes. What happened there? Is there any investigation at all????
Why not?
I'm sure he was murdered to keep his story from the public.
 
 
+7 # Malcolm 2013-09-14 17:01
Re: " "If there's a good side to this, maybe that's it."

Good side to WHAT??? Harassing the hell out of a brave man who blew the whistle on the corrupt, Big Brotherish fascists again are running (into the ground) this so-called democracy?
 
 
+9 # WestWinds 2013-09-14 22:05
I must confess to being quite shocked that some of the courts are finally acting like courts instead of front line defense for the industrialists and corporations.

The job of the courts is to apply the law in an unbiased and even-handed, learned hand (pardon the pun) way; not be paid hacks and shills for corruption as they have been insisting on being over these last many years. At the moment, the courts have no credibility, but I must say, they seem to be trying to recover themselves and act like they should. I applaud this thinking; oh, yes I do.
 
 
+2 # RMDC 2013-09-15 07:43
It is good to see Snowden's revelations back in the news. For a while, it seemed that OBama's Syria distraction would bury the coverage of the NSA and its criminal regime. There's a long way to go but this judge seems to be getting the message.
 
 
+3 # Sweet Pea 2013-09-15 08:21
I remember the first time that I heard about the government spying on our phone conversations. I told my husband "I don't care if the government knows who I talk to or what I say. He told me that there might come a day when I did. Thinking about it he might have been right.
 
 
+2 # ghostperson 2013-09-15 17:53
You better believe it. What if the people in state government, zealots for lack of better expression, don't think that women should have contraception and you order it by prescription from an out of state pharmacy service and place the order online or by phone. The government didn't create us. We the people created it. We are not serfs to elite masters. The right to privacy is fundamental to all other rights. Without privacy we have nothing.
 
 
+3 # ghostperson 2013-09-15 17:48
Faint praise carefully couched. Snowden did right by the citizens of this country. NSA can't unring the bell.

Is Snowden's route optimum? No. Is it preferred? No. Did it work? Yes. And than God.

I'm a citizen who is fed up to the gills with bull shit from plutocrats, oligarchs, the military industrial complex and a dysfunctional government that couldn't hit competence with either hand if it were written on its ass.

It's "We The People" not "We The Assholes."
 
 
+2 # Sunflower 2013-09-16 07:41
for those who think they have nothing to hide, therefore they don't mind being spied on:

it is a matter of freedom of speech, because none of us will discuss the things that concern us as frankly if we think there is the possibility of someone listening in or keeping a record of what we just said. That means that we will be less likely to say things like,

"Why the hell are we paying (taxes) for our own oppression?"

"How can we right the system?"

(and lots and lots more)

And so on... It is terribly important to be able to have these conversations if we are to grow in our understanding of what we are being subjected to, and how we can extricate our society from the hands of the warmongering, murderous, and
even terribly incautious (no gov response that amounts to much on stopping climate change, for instance) gang that is currently running the gov and the media.
 

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