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For 35 years the Foreign Intelligence Surveillance Court has been the judicial equivalent of a stellar black hole — everything goes in but nothing is allowed to escape.
Last week, however, for the first time since its creation, the Obama administration declassified and made public large portions of an 85-page top-secret ruling by the court that had been the subject of a Freedom of Information lawsuit by the Electronic Frontier Foundation.
The surveillance court was created in 1978, designed to act as a safeguard to protect the public from the National Security Agency's ever-expanding eavesdropping capabilities, and its long history of widespread illegal spying. For three decades leading up to 1975, for example, the agency had been secretly reading, without a warrant, millions of telegrams to and from Americans as they passed over the wires of Western Union and other telegraph companies — the Internet of the day. That was supposed to come to a halt with the creation of the court.
These newly released documents, however, show a massive breakdown in the court's oversight responsibilities — and an equally massive effort by the NSA to circumvent the law and secretly conduct widespread operations directed at Americans.
In the 2011 ruling, the court's then chief judge, John D. Bates, harshly admonished the agency for repeatedly misleading the court about its warrantless eavesdropping on tens of thousands of domestic email messages and Internet web searches for the previous three years. In his unusually harsh rebuke, Bates warned that the NSA's operations had violated the Constitution and exemplified a pattern of misrepresentation to the court — what most people would call lies — by agency officials.
"The court," wrote Bates, "is troubled that the government's revelations regarding N.S.A.'s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program."
Using such tough phrases as, "repeated inaccurate statements," "contrary to the government's repeated assurances" and "frequently and systematically violated," the judge made clear that the NSA's actions were both systemic and deliberate.
It was the description of an agency on the path to going rogue and turning on its own citizens. But it was a description by a body with only the power to protest — not to stop it or alert the public.
This pattern seems to be constantly repeating, as the agency continues to expand exponentially in power and capability, while the institutions charged with overseeing it grow weaker by the year. The congressional intelligence committees, for example, appear far more willing to protect the NSA from budget cuts than to protect the public from the agency.
The NSA's troubles are anything but new. According to a 175-page Justice Department document, still classified at a level above top secret, the department launched a highly secret and unprecedented agency-wide criminal investigation of NSA in 1975, including reading the Miranda rights to many senior employees. The little-known investigation by the Justice Department's Criminal Division focused on widespread illegal targeting of American communications, digital as well as voice, which was uncovered by a commission chaired by then Vice President Nelson Rockefeller.
This report was declassified and released to me under a Freedom of Information request, but then it was reclassified by NSA as Top Secret Umbra, a codeword for the agency's most sensitive information. It reveals that the agency officials were less than helpful in the investigation, as I explain in my 2009 book, The Shadow Factory. Dougald D. McMillan, author of the task force's final report, wrote, "One typically had to ask the right question to elicit the right answer or document." He pointed out "it is likely, therefore, that we had insufficient information on occasion to frame the ‘magic' question."
In the end, despite the fact that the task force had managed to uncover no fewer than 23 different categories of questionable electronic-surveillance activities, they recommended against prosecution because of the highly secret nature of the NSA's activities and the agency's penchant for obfuscation. "There is likely to be," the report said, "much ‘buck-passing' from subordinate to superior, agency to agency, agency to board or committee, board or committee to the President, and from the living to the dead."
Rather than point a finger at any one official, the task force instead indicted the national security system as a whole — a system that granted the NSA and other agencies "too much discretionary authority with too little accountability."
As the recently released surveillance court documents clearly show, that excess of authority and inadequate accountability has ballooned over the years. At the same time, technology — from cell phones to the Internet — has given the NSA the ability to expand its eavesdropping capabilities exponentially. For example, according to the surveillance court, the NSA "acquires more than 250 million Internet communications each year."
Another change appears to be the lack of any restraint today when it comes to lying and deception to the oversight bodies, weak as they already are, as well as the public. The formerly secret surveillance court ruling points out that senior agency officials were providing the judges with "repeated inaccurate statements." Meanwhile, James Clapper, the director of national intelligence, appeared fully willing and able to tell untruths to his Senate intelligence committee overseers about NSA's massive domestic surveillance program that is targeting every American's telephone records.
General Keith Alexander, NSA director, frequently made similar untruthful claims in public forums, in an effort to deceive the American public about the extent of NSA's spying on them. "No … we don't hold data on U.S. citizens," he told Fox News in April — before the revelations of Edward Snowden appeared. At a July 2012 Aspen Institute conference Alexander said, "To think we would be collecting on every U.S. person…that would be against the law." He added, "The fact is we're a foreign intelligence agency."
But the lying in the Obama administration starts at the top. President Barack Obama has repeatedly declared, "There is no spying on Americans," as well as, "we don't have a domestic spying program," as he told the world on The Tonight Show with Jay Leno. A few days later, however, the New York Times revealed that NSA is "searching the contents of vast amounts of Americans' e-mail and text communications into and out of the country," looking not only for Americans communicating with people on the agency's watch list, but also for any innocent Americans who simply mention information about it.
Obama set a precedent for misleading the American public during his first year in the White House. In mid-December 2009, he ordered an attack against a small village in southern Yemen using cruise missiles loaded with clusters munitions, weapons outlawed by 109 countries. Instead of taking out its principle al Qaeda target, the cluster bombs killed 52 villagers, more than half of them women and children. But rather than take responsibility for the massacre, Obama and Yemeni President Ali Abdullah Saleh secretly agreed to allow Saleh to claim credit. The next day, Obama made a deceptive call to Saleh, thanking him for the successful counterterrorism attack. Many more attacks followed, as well as more death and deception.
While there are no indications that Obama intends to use the massive surveillance technology that NSA gives him to further a domestic political agenda, there is also no reason to believe that another president might not use it in that way — or worse.
Consider, in the 1970s, through an NSA program codenamed Minaret, President Richard M. Nixon ordered the agency to begin eavesdropping on the telephone calls of anti-war protesters such as Jane Fonda and Dr. Benjamin Spock. The senior NSA officials were overjoyed at the prospect of turning its giant ears inward on the American public. When told the news, NSA Deputy Director Louis Tordella exclaimed that the policy change was "nothing less than a heaven-sent opportunity for NSA."
As can clearly be seen by this recent top-secret surveillance court ruling, Tordella would fit in well at the NSA today. And therein lies the danger.
But the greater danger was elucidated by the 19th Century political philosopher Lysander Spooner. "Those who are capable of tyranny," he said, "are capable of perjury to sustain it."
The opinions expressed are the author's own.