The Government Is Trying to Keep Key NSA Spying Rules Secret

A federal appeals court in New York will hear oral argument on Tuesday in our lawsuit fighting for the public’s right to know the legal justifications for government spying.

The Freedom of Information Act suit seeks the release of secret memos written by government lawyers that provided the foundation for the warrantless surveillance of Americans’ international communications. In essence, these memos serve as the law that governs the executive branch. By withholding them, the government is flouting a core principle of democratic society: The law must be public.  

The memos cover the government’s legal interpretations of Executive Order 12333, which was issued by President Ronald Reagan in 1981. It’s the primary authority under which the NSA conducts surveillance, and it encompasses an array of warrantless, high-tech spying programs. While much of this spying occurs outside the United States and is ostensibly directed at foreigners, it nonetheless vacuums up vast quantities of Americans’ communications. That’s because in today’s interconnected world, communications are frequently sent, routed, or stored abroad — where they may be collected, often in bulk, in the course of the NSA’s spying activities.

For example, the NSA has relied on EO 12333 to collect nearly 5 billion records per day on the locations of cell phones, as well as hundreds of millions of contact lists and address books from email and messaging accounts. It also intercepted private data from Google and Yahoo user accounts as that information traveled between those companies’ data centers located abroad.

Despite its breadth, surveillance under EO 12333 is not subject to meaningful oversight by Congress or the courts. This makes learning how EO 12333 works even more important. We’re seeking basic information about the government’s interpretation of the legal boundaries of the executive order and the supposed protections for Americans whose communications are ensnared in this largely unchecked surveillance.

Although the government has disclosed some of this information over the course of the case, it’s improperly withholding key parts of a Justice Department memo that provided the basis for President George W. Bush’s unconstitutional warrantless wiretapping program. It’s also withholding six other memos that set out the legal basis for surveillance activities under the order.

The government claims that these documents should be kept secret because the memos didn’t expressly and officially impose legal limits that spy agencies had to abide by. But because the memos contain what’s known as “working law” — essentially the rules of the road for what the government does — they shouldn’t be withheld from the public. Working law includes the legal analyses that agencies accept and rely on as a basis for their actions.

The legal reasoning in these memos is precisely the kind of information that Congress intended to make public through the Freedom of Information Act. The Supreme Court has issued rulings supporting that principle, saying that “the public is vitally concerned with the reasons” undergirding agency actions. FOIA requires the government to make these reasons public whenever possible. Yet the district court wrongly decided in this case that the government could keep the documents hidden.

While the government might rightly withhold the operational details of EO 12333 programs for national security reasons, the public has a right to know the basic legal contours under which the NSA and CIA are gathering our personal communications.

When the government operates a massive surveillance apparatus in the shadows without meaningful legislative or judicial oversight, it undermines accountability to the people. Secret law has no place in a democracy.

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Dr. Joseph Goebbels

So all this spying under Executive Order 12333, was President Ronald Reagan's handiwork and all this time we thought he was Super President.

Matt

Man, you're oversimplifying it. You need to do some research on the history of the NSA and EO 12333 before you make dumb comments like that.

Anonymous

Historically, American agencies have been the polar-opposite of an East German style Stasi (secret blacklisting police). We haven't arrived to a full-blown Stasi yet but one could make a strong argument that we are travelling very fast down that road toward the system used by the Communists, despots and Fascist regimes. Prior to 9/11 it would have been unheard of for the United States to torture, assassinate, overturn the Geneva Conventions (that protects U.S. troops also), to overturn the "Nuremberg Defense" legal precedent (used to prosecute Nazi prison guards), to torture U.S. citizens on U.S. soil, to adopt a "preemption doctrine" that punishes people for crimes they may commit in the future (without an actual crime) and to throw people in gulags without charge, trial, judge, jury or guilty verdict. For the first time in over 200 years of American history, the United States has been denounced by the International Red Cross [a Christian organization] for human rights abuses. Those of us that grew up during the Cold War were taught - by Carter, Reagan, teachers and parents - that only "evil regimes" did this stuff, not Americans. The NSA is probably a great agency with great people but this is what a national security agency should be concerned about - "domestic enemies to the Constitution" - which is also part of the NSA oath of office.

Anonymous

Likely the legal basis would look really shaky, likely laughable if we read it. Thus we serfs are not entitled to it.

I thought secret law was what our enemies such as north Korea, Iran, China, and Russia do. Not a fine upstanding republic like the US of A

Matt

This isn't "secret law" as the ACLU has led you to believe. These are policy memos implementing the public law. And since these memos likely contain limitations and permissions that are indeed national security sensitive, the lawsuit may not succeed.

Matt, this is law that applies to american citizens being hidden from american citizens. This is secret law.

Matt

Our gov say no one is above the law, but the NSA is when they break the laws of the constitution such as our privacy. They use national security as an excuse to break laws for example using technology to test on innocent Americans without there consent the gov says they dont need our consent to use technology to read our minds its electromagnetic mind control and surveillance where they can and have entered victims brains and body testing this technology and it causes brain damage tumors and rare cancers and guess what they can do it from a distance and they dont have to lay a hand on you to do it they use your bio makeup of each person there are hundreds of thousands of victims the news have been told the victims are crazy dont report there story's when the victims are teachers doctors lawyers blue and white collar workers and even children this technology alters your thinking pattern your dreams and put voices and thoughts in your head and make you think you are thinking it and the surveillance is 24/7 and with this new technology they can see every thing you see and hear every thing you can hear. I know it sounds like something out of a movie but it's TRUE they have working patents on this technology and the victims that survive try to go to court the judges throw out there case national security is words they use to break the law.. There is an NSA handler that has admitted to being an operator of this technology and has offered to sell prOof of it existing this person wants to sell the info to expose the NSA we the victims dont have a public state because the gov has labeled us as being crazy so the media wont tell our story about this control testing which is deadly in most victims the American people are not aware of this technology it can control every organ in the human body from the brain to the heart to the kidneys every part of the human body is controlled once you become a victim of this blackops covert program and its supported by the courts so the NSA is breaking laws which make them above the law. The only way to stop a program like this is we the people is the only way to stop this program of control. Because an injustice against one of us is an injustice against us all. This handler has info about this program just like Edward Snowden had info he also has info about this horrible invasion of the human brain and body no one should have control over another human being and that includes our gov. No gov agency should be above the laws of this land no one.!! People need to read more and they would know about this technology that can destroy and take your life from a remote area no matter who or where you are. China and Russia and Canada has the same program read people educate yourself listen to the victims the internet is full of them because that's the only stage we have. Harm might come to me for exposing this gov secret but the American people deserve to know... you dont have to believe me but time will show you very soon.

Matt

You need to educate yourself before calling some one dumb it's people like you is the reason the NSA is able to get away with these types of programs and when it happens you are the first to complain and say you didnt know. There are hundreds of thousands of victims they all cant be lying or crazy and if you took the time to research the program instead of calling people names you would see it's TRUE such as researching the patents of this program owned by the gov. You see I have done my home work. I dont make statements until I do I have spent the last 2 years doing so. This program is an extension of the mkultra program from the 1960s and 1970s if you do your home work before calling people dumb you would know theres no replacement or excuses for not educating yourself and being not of your own understanding of a subject. If you noticed I didnt insult you one time because we as Americans should be able to disagree without insulting one another but that's what this wonderful country has become. Do me a favor and research the subject and then comment and we will see if you still feel I'm dumb which I'm not you would be surprise to who I am...

Anonymous

Obviously we don't live in a Democracy anymore....

You people are just too stupid to understand this and too lazy to do anything about it.

Consumer Cows grazing on fields of iphones. you morons make me sick

Anonymous

Actually, decades ago we didn't nor should we ever want to live in a democracy. The Constitutional republic the Founders bequeathed us protects the rights of minorities; in a democracy, no one's rights are safe. They are always subject to the majority's approval. We are seeing that in action now w/ the attempts to strip us of our right to keep and bear arms under the Second Amendment: our rulers hope to convince the majority that guns are evil and must be banned. In a Constitutional republic, that God-given, inalienable right could never be repealed.
America is in fact a democracy now, as politicians have stripped the Constitution of its republicanism (direct election of senators; the current calls to get rid of the electoral college; etc.). But democracy is a despicable form of govt and historically has always led to tyranny.

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