The Obama administration Friday reasserted its claim of state-secrets privilege to try to block a court from ruling on the constitutionality of the National Security Agency’s interception of e-mails and phone calls on U.S. soil without a warrant.
The reassertion of the privilege in two long-running lawsuits comes despite recent disclosures about the NSA’s programs and as President Obama is considering curbs to the NSA’s programs based on recommendations by a review panel he appointed.
“In my judgment, disclosure of still-classified details regarding these intelligence-gathering activities, either directly or indirectly, would seriously compromise, if not destroy, important and vital ongoing intelligence operations,” Director of National Intelligence James R. Clapper said in a declaration filed in U.S. District Court in Northern California on Friday.
In court filings, the government also acknowledged for the first time that sweeping collections of Americans’ phone and Internet metadata began under the Bush administration, in concert with a program of intercepting phone and e-mail content without warrants — programs that operated for years solely under executive power before being brought under court and congressional oversight. Clapper said in his declaration that President George W. Bush authorized the collection efforts on Oct. 4, 2001, after the Sept. 11 terrorist attacks.
Despite that declassification, he said, revealing other information about the programs would compromise their effectiveness. The lawsuits are challenging the warrantless surveillance of phone call and e-mail content, and one of them focuses as well on the collection of data on phone calls.
The government is asking the court to dismiss the two cases on grounds that the plaintiffs, Carolyn Jewel and Virginia Shubert, have not proven they were monitored by the NSA’s interception of their phone calls or e-mails. To prove that they were would require disclosure of collection techniques that could cause “exceptionally grave damage” to national security, officials said.
Jewel is suing on behalf of all AT&T customers, and Shubert is suing on behalf of all Americans.
“As a matter of course, the NSA cannot publicly confirm or deny whether any individual is or has been subject to intelligence gathering, because to do so would tend to reveal actual targets or subjects,” said Frances J. Fleisch, acting NSA deputy director, in a declaration also filed Friday.
But Cindy Cohn, legal director for the Electronic Frontier Foundation, which is representing the plaintiffs, said the government’s claim that information about whether they are indiscriminately collecting Americans’ communications is still secret “ridiculous at this point.”
“The American people know they’re being surveilled,” she said. “The government is trying to reset the clock in order to avoid an open judicial determination about whether that surveillance is legal.”
At issue is the NSA’s program to intercept phone and e-mail communications without a warrant, which was placed under court supervision in 2007 and then authorized by Congress in 2007 and 2008. Jewel also is challenging the agency’s collection of Americans’ phone metadata, or call logs that include numbers dialed and call lengths and times. That program was placed under court supervision in 2006 on the basis of a statute that has been reauthorized several times since then. Its existence was revealed in June following a leak by former NSA contractor Edward Snowden.
The government has already suffered a setback in the case. U.S. District Judge Jeffrey S. White in July ruled that the government could not assert a state-secrets privilege when the underlying law, the Foreign Intelligence Surveillance Act, offers a process to hear classified evidence in closed chambers.
The declassification of the Bush administration’s authorization of the programs came in response to White’s order to the government to review declarations filed in the case. The judge wanted to see what could be declassified in light of Snowden’s revelations as well as subsequent disclosures made by the government.
The government also declassified eight other declarations filed in the litigation by senior intelligence officials alleging national security would be harmed by disclosing program information.
The filings come during an extraordinary week of surveillance developments in which a federal judge in Washington said the NSA’s collection of phone metadata is likely unconstitutional, a White House-appointed review panel recommended that the NSA’s storage of the data be ended and Obama suggested he might shift custodianship of the records from the NSA to the phone companies.