NSA tells Court to trust them when it comes to surveillance of Americans under the "Terrorist Surveillance Program."
San Francisco, CA - The public should trust that the National Security Agency will use its powers under a Terrorist Surveillance Program only when absolutely necessary, the NSA claims in Federal Court.
That's what the NSA said in response to a class action that claims the agency would have unlimited authority to monitor anyone at any time if the class loses its lawsuit challenging the government's claim of state secrets protection.
In its "Government Defendants' Reply in Support of Second Motion to Dismiss and for Summary Judgment," the NSA claims it is not obligated to turn over evidence in the class action that accused it of warrantless "dragnet" surveillance of U.S. citizens.
Lead plaintiff Carolyn Jewell represents telephone service customers who accuse the NSA of using telecommunications companies to spy on customers under the Terrorist Surveillance Program (TSP).
Created after the Sept. 11 terrorist attacks, critics claim the NASA used the TSP to violate the Constitution and the Foreign Intelligence Surveillance Act.
Jewell et al. claim that dismissal of the complaint against the NSA would be a weak concession by the judiciary, and a breach in the system of checks and balances.
The NSA wants the case dismissed because supplying evidence would compromise national security.
"This lawsuit puts at issue alleged intelligence activities of the National Security Agency ('NSA') purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001," the NSA says in its response. "Plaintiffs allege that the NSA engages in warrantless 'dragnet' surveillance by collecting the content of millions of domestic communications, as well as communication transactional records.
"For the past six years, the nation's most senior intelligence officials, in succeeding
administrations, have consistently advised this court that litigation of plaintiffs' allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs' suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling national security interests."
The NSA claims that Jewel's assertion that FISA displaces the state secrets privilege is false, and that her argument that 9th Circuit "precedent concerning the privilege has been effectively overruled by the Supreme Court and that, as a result, this court may only consider a privilege assertion in response to specific discovery requests," is also incorrect.
"Finally, citing hearsay and speculation in media reports, plaintiffs wrongly contend that their case may proceed on "'on-privileged' evidence," the NSA said. "Plaintiffs' opposition does not present a way forward, but a roadmap to why further proceedings would risk the disclosure of highly sensitive NSA sources and methods."
http://www.courthousenews.com/2012/10/23/51558.htm
Court Filing: http://www.courthousenews.com/2012/10/23/NSA%20Defendant.pdf
Feds Cite ‘State Secrets’ in dragnet surveillance case - again.
The Obama administration is again arguing that a lawsuit accusing the National Security Agency of vacuuming up Americans’ electronic communications without warrants threatens national security and would expose state secrets if litigated.
“This case may be dismissed on the ground that its very subject matter constitutes a state secret,” the government said (.pdf) in a legal filing in San Francisco federal court.
Brought by the Electronic Frontier Foundation, the case is now four years old and its merits have never been litigated. The civil rights group claims that the major telecoms provided the NSA a warrantless backdoor to the nation’s communication backbone.
Despite the government’s protestations that talking about the program would expose national secrets, the program is well-known, well-documented, and as of 2008, partially legalized by a compliant Congress.
Just two weeks ago, the Supreme Court terminated the EFF’s case against the telcos for their participation in the program. The justices declined to review 2008 congressional legislation giving the telcos immunity from being sued for their participation. Congress adopted the law after a federal judge rejected the government’s state-secrets claim.
When Congress passed the law, the EFF targeted the government instead, accusing it of running a massive dragnet spy operation without warrants. The allegations are based in part on a former AT&T technician named Mark Klein, who produced internal company documents suggesting that the NSA was surveilling internet backbone traffic from a secret room at an AT&T switching center in San Francisco, and similar facilities around the country.
A federal judge dismissed the case, ruling that it amounted to a “general grievance” from the public and not an actionable claim. But a federal appeals court reversed that decision, and sent it down to new trial judge.
“The speculation and hearsay plaintiffs cite is little more than allegations that would be subject to exacting adversarial proceedings in order to adduce actual proof as to what may be true, partly true, or entirely false. And it is this very process that will inherently risk or require the disclosure of highly sensitive intelligence sources and methods,” the government said Friday while invoking the state secrets privilege.
Usually, when the privilege is asserted, the courts defer to the executive branch and dismiss cases — without even checking the evidence themselves.
One of the few times that did not happen was in 2008, when U.S. District Judge Vaughn Walker of San Francisco kept the EFF’s case alive against the telcos. Walker ultimately dismissed it after Congress passed legislation prohibiting the suit.
http://www.wired.com/threatlevel/2012/10/state-secrets-surveillance/
The Bush Administration’s Terrorist Surveillance Program and the Fourth Amendment’s Warrant Requirement:
http://lawreview.law.ucdavis.edu/issues/41/3/intl-crime-terrorism/41-3_Maclin.pdf
National Intelligence Program-funding highlights:
Provides $52.6 billion in discretionary funding. This funding supports our national security goals and reflects a deliberative process to focus funding on the most critical capabilities, curtail personnel growth, and invest in more efficient information technology solutions.
Continues to better integrate intelligence to help policy officials make decisions informed by the latest and most accurate intelligence available.
Strengthens global intelligence capabilities to disrupt terrorism and better understand extremist threats.
Counters the proliferation of weapons of mass destruction by strengthening collection and analysis capabilities.
Enhances cybersecurity capabilities to help protect Federal networks, critical infrastructure, and America’s economy while improving the security of intelligence networks against intrusion and counterintelligence threats.
Modernizes the Intelligence Community’s information technology infrastructure to remove barriers to collaboration, information sharing, and efficiency.
Reduces contractors and freezes Government personnel levels.
Terminates or reduces lower priority operational and investment programs.
Integrates Intelligence:
The IC will continue to improve intelligence integration to harness more efficiently and effectively the strengths and capabilities that are spread across 17 organizations. Through National Intelligence Managers and their associated Unifying Intelligence Strategies, the Director of National Intelligence has drawn together the expertise required to accomplish the goals of the National Security Strategy and the National Intelligence Strategy, as guided by the National Intelligence Priorities Framework. The IC is working to ensure that integrated intelligence information flows anywhere and anytime it is required by any authorized user, from the President to our troops on the ground.
http://cryptome.org/2012/10/spy-budget-2013.pdf