December 22, 2013
U.S. Director of
National Intelligence James Clapper.
(Reuters / Jason Reed)
Obama’s Director for National Intelligence, James Clapper, has
declassified new documents that reveal how the NSA was first given the green
light to start collecting bulk communication data in the hunt for Al-Qaeda
terrorists after 9/11.
administration has for the first time publicly confirmed,
"the existence of collection activities
authorized by President George W. Bush," such as bulk amounts of
Internet and phone metadata, as part of the "Terrorist Surveillance
The disclosures are part of Washington's
campaign to justify the NSA’s surveillance activities, following massive
leaks to the media about the classified programs by former NSA contractor
Clapper explained on Saturday that President
George W. Bush first authorized the spying in October 2001,
just weeks after
the September 11 attacks.
It was revealed that President Bush issued authorizations every 30-60 days.
Each 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. NSA also applied additional internal
constraints on the presidentially authorized activities."
The presidentially authorized activities were
later shifted to the authority of the Foreign Intelligence Surveillance
a secret court which considers government requests for electronic
surveillance for intelligence-related purposes.
The collection of communications content
pursuant to presidential authorization ended in 2007, when the government
switched TSP to FISA’s authority, and put it under the orders of the
Foreign Intelligence Surveillance Court (FISC).
Former U.S. President George
(Reuters / Jason Reed)
According to Clapper, content collection is currently conducted pursuant to
section 702 of FISA.
In December 2011, the US government,
"decided to not seek reauthorization of the
bulk collection of Internet metadata."
The documents released also feature legal
arguments by former national intelligence directors to
spying activities secret, in what has become the,
"longest running case against the government
seeking to stop the domestic spying program," filed in 2006 as Shubert
v. Bush, and currently known as Shubert v. Obama.
A civil liberties group, the Electronic Frontier
Foundation, hailed it as “a class action on behalf of all Americans against
the government, alleging a massive, indiscriminate, illegal National
Security Agency (NSA) dragnet of the phone calls and email of tens of
millions of ordinary Americans.”
Shubert seeks to hold accountable "the architects of the dragnet,"
NSA Director General Keith Alexander
former NSA Director General Michael
former Attorney General Alberto Gonzales
former Attorney General John Ashcroft
For seven years, the government attempted to
dismiss the case on grounds of national security.
Former director of National Intelligence Dennis Blair argued back in
2009 that revealing details about how sensitive information was collected
could damage the hunt for terrorists.
"To do so would obviously disclose to our
adversaries that we know of their plans and how we may be obtaining
information," Blair said.
In July 2013, a federal district judge rejected
the argument, and has permitted the case to go forward against all
Director of the National
Security Agency Gen. Keith Alexander.
(AFP Photo / Alex Wong)
Meanwhile, in response to the public's concern about privacy violations,
Obama said Friday he would consider some changes to NSA's bulk collection of
Americans' phone records.
"The question we're going to have to ask is
can we accomplish the same goals that this program is intended to
accomplish in ways that give the public more confidence that, in fact,
the NSA is doing what it's supposed to be doing," Obama said.
"I have confidence in the fact that the NSA
is not engaging in domestic surveillance or snooping around, but I also
recognize that as technologies change and people can start running
algorithms and programs that map out all the information that we're
downloading on a daily basis into our telephones and our computers."
On Monday, a US District Court Judge ruled that
the NSA surveillance program, which collects records and phone numbers in
every phone call made in the US, allegedly in search for connections to
suspected terrorists, was probably unconstitutional.
Judge Richard Leon said that the agency's
notorious program violates the Constitution's Fourth Amendment meant to
protects Americans against unreasonable searches and seizures.
"I cannot imagine a more 'indiscriminate'
and 'arbitrary invasion' than this systematic and high-tech collection
and retention of personal data on virtually every single citizen for
purposes of querying it and analyzing it without judicial approval," the
judge said in his ruling.
"Indeed, I have little doubt that the author
of our Constitution, James Madison, who cautioned us to beware 'the
abridgement of freedom of the people by gradual and silent encroachments
by those in power,' would be aghast.”
He pointed out that when constitutional rights
"Congress should not be able to cut off a
citizen's right to judicial review of that Government action simply
because it intended for the conduct to remain secret."
"We've seen the opinion and are studying it. We believe the program is
constitutional as previous judges have found," the Justice Department
responded in a statement.
The judge also noted that there was little
evidence that any terror plot had been successfully impeded by the
controversial program, known as
Section 215 of the USA Patriot Act.
A task force appointed by Barack Obama to review the NSA surveillance
program recently came to the conclusion that the data collection program was
"not essential to preventing attacks", and suggested some 46 changes to NSA
Although the advisory panel recommended continuing the program, it required
a court order for each NSA search of the phone records database, and keeping
that database in the hands of a third party, rather than the government.