Justice Department Must Stop Covering Up Program Now Known to Be Illegal, Groups Tell Court

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WASHINGTON -The American Civil Liberties Union, the National Security Archive and the Electronic Privacy Information Center today filed new legal papers urging a federal judge to compel the Justice Department to release documents pertaining to the National Security Agency’s warrantless surveillance program. The move comes after former Deputy Attorney General James Comey testified that the Justice Department determined in March 2004 that the NSA program was unlawful.

“As Mr. Comey’s testimony makes clear, the NSA’s warrantless surveillance program was illegal, and even the Justice Department’s own attorneys reached that conclusion,” said Jameel Jaffer, Director of the ACLU’s National Security Project. “Full disclosure about this blatantly illegal program is imperative, particularly because President Bush continues to assert the authority to resurrect the program at any time.”  

On December 20, 2005, the ACLU and the National Security Archive submitted multiple requests under the Freedom of Information Act (FOIA) to the NSA, the Justice Department and the Central Intelligence Agency seeking all records about “the policies, procedures and/or practices of the National Security Agency for gathering information through warrantless electronic surveillance and/or warrantless physical searches in the United States.” The ACLU and the Archive filed a lawsuit to enforce the FOIA requests and the case was consolidated with a similar lawsuit brought by the Electronic Privacy Information Center (EPIC). The government is asking the court to permit it to keep the NSA documents secret.

In today’s brief, the three groups ask Judge Henry H. Kennedy of the U.S. District Court for the District of Columbia to deny the government’s motion and to review the documents himself to determine whether the documents should be released. The ACLU said that Comey’s testimony last week clearly underscores the need for more information on the NSA program. Comey testified that not only did President Bush reauthorize the NSA program in 2004 without a signature from the Justice Department; he reauthorized the program even after both Comey and then-Attorney General John Ashcroft determined that the program was illegal. The series of events nearly culminated in the resignation of several senior Justice Department officials, Comey said.

Members of the Senate Judiciary Committee are also seeking release of records on the illegal surveillance program. In a letter sent on May 21 to Attorney General Alberto Gonzales, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) said that Comey’s testimony “obviously raises very serious questions about your personal behavior and commitment to the rule of law,” and called for an end to the stonewalling by Gonzales and the administration. Though the Senate Judiciary Committee has made eight formal requests over the past 18 months for documents and information related to the NSA program, both the White House and Justice Department have refused to comply.

In early 2006, soon after the NSA’s illegal activities became public, the ACLU filed a seperate lawsuit on behalf of criminal defense attorneys, journalists and scholars challenging the NSA’s warrantless surveillance of Americans’ calls and e-mails. The government responded to the legal challenge not by defending the legality of the NSA’s surveillance activities, but by invoking secrecy as the basis for dismissing the lawsuit. The administration argued that the NSA’s surveillance was so secret that not even a court could determine its legality. On August 17, 2006, a federal court in Michigan agreed with the ACLU that the program was illegal. The government appealed that ruling to the Sixth Circuit Court of Appeals. A decision from the appeals court is expected soon.

While the case was on appeal, the Justice Department conceded that the judicial branch has a role in overseeing surveillance by the NSA, and announced that it had obtained some kind of belated authorization from the Foreign Intelligence Surveillance Court approving the surveillance. However, the Justice Department refused to provide any information about the secret approvals and claimed that the president could resume the warrantless surveillance at any time.

Attorneys in the consolidated FOIA cases are Jaffer and Nasrina Bargzie of the national ACLU, Meredith Fuchs of the National Security Archive, Marc Rotenberg of EPIC, and Art Spitzer of the ACLU of the National Capital Area.

Today’s legal brief is online at: www.aclu.org/safefree/nsaspying/29850lgl20070523.html 

More information on NSA surveillance is online at: www.aclu.org/nsaspying