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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Anonymous

dude cmon you sound smart. do you really think that helps? you may be right but if you are or not you need those people on your side if anything is to be done about it and frankly that's not going to win them over. be more creative. you don't even have to do some seemingly pointless research (though its never pointless) to make a point. you don't even need to make a point at all or talk about why we are where we are. freedom has its price to every generation and we are about to pay dearly. WHAT NEEDS TO BE DISCUSSED IS HOW TO UNITE SO THAT YOUR CHILDREN WILL HAVE A LIFE WORTH LIVING.

Anonymous

oh id like to add that all the arguing and name calling is taking you from the real problem and is keeping us divided. I mean honestly, everything I thought mattered is so trivial. its by design if the people are divided then, well you can fill in the rest. I'm experiencing a taste of what is coming first hand and I garauntee if it was happening to you you would know that the freedoms we enjoy are in fact worth dying for.... in the past I would have said something stupid like "just saying" or "open your eyes" or "stop being naïve" but now i see that is wrong and i struggle with exactly how to end this except to say please put yourself in the shoes of someone less blessed for it is no life without freedom

This should concern any American citizen. Almost all connected tech is in multiple nations at this point. If your traffic gets routed through foreign nations, you shouldn't be caught up in the surveillance, but we have no way of knowing if we are. The law was created before the internet in any meaningful form was around, and I can guarantee there are a lot of new situations that just aren't covered well at all in this old, secret legislation. I shudder to think how many of my communications with my international friends, and how many of my communications sent while abroad, could potentially be legally fair game in terms of this memo.

Anonymous

It appears multiple agencies have adopted an illegal practice of unconstitutional "Social Engineering" that should outrage any federal judge. Essentially the agency or agencies - acting in concert - choose their targets entire social circle. The strategy appears to be totalitarian control over Americans. The agency chooses your friends, associates and colleagues. They decide if you can contact your family members. This means they deny their targeted victim friendships outside this chosen circle. After 9/11 this circle might suggest dangerous work practices that could even disable or kill their detainee. This circle would also severely punish or reward their detainees if they didn't support the unconstitutional practices of the bureacracy. These agencies also obstructed justice, allowed material evidence (affecting outcomes of Judicial Branch court cases) and witness tampering. Ashcroft and most subsequent U.S. Attorneys General have likely been made fully aware of this program so it appears that federal prosecutors are already aware of this illegal detention practice. Every FBI Director is likely aware of this practice. State and local officials have been "deputized" by federal money to play ball also. In other words America has no justice system if these covert practices are allowed to stand. They simply illegally cheat to win cases but successfully keep judges out of the loop. This is not an illegal leak by any government official or contractor, this is a crime report from a private citizen. These types of tactics justify a federal judge to launch a Truth Commission on unAmerican practices by some agencies.

Anonymous

I like this sharing and will discuss with my mates too about this article as will be free from my bus trips to yosemite Park.

Anonymous

These programs are supposed to be used solely to protect national security. How does anyone know, that with no oversight, these programs and technologies are being unlawfully leveraged for other purposes, such as political or economical targeting of innocent US civilians with no foreign contacts. I believe they are, and that is what is being covered up. I believe the abuse is widespread and egregious. I would say that would be in connection with a doctor with a cure for a disease, or a person who may have a competitive advantage in some way that could be perceived as a threat to very wealthy, powerful individuals.

Anonymous

I accessed the FDA to research a generic drug received that did not work. As I was at the bottom, there was a statement that everything I write will be monitored, including support groups for my disease. I should have taken a screenshot, but quickly closed by natural reflex. So, the government is logging my comment here as well

Anonymous

From the title and the use of the word "SPYING" and the last paragraph and the use of the words "surveillance apparatus" within the context, may I conclude that you and the ACLU would agree that surveillance is a "method' of spying?

To put it another way:;

Can one perform surveillance without spying? I would definitely say yes.

Can one spy without surveillance? My answer would be no. What is yours?

"Semantics smacks in the face of it." -- a Rayism

Thank you for the opportunity to comment.

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