October 9, 2008

New Information Suggests That Bush Administration Misrepresented Scope Of NSA Surveillance Activities

CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – National Security Agency (NSA) officials have intercepted, listened to and passed around the phone calls of hundreds of innocent U.S. citizens working overseas, according to an ABC News report out today. The new information shows the government has misled the American public about the scope of its surveillance activities, according to the American Civil Liberties Union.

"The NSA used its surveillance powers to intentionally collect the personal communications of innocent Americans, including service members and humanitarian aid workers," said Jameel Jaffer, Director of the ACLU National Security Project. "Today's report is an indictment not only of the Bush administration, but of all of those political leaders, Democratic and Republican, who have been saying that the executive branch can be trusted with surveillance powers that are essentially unchecked."

In the ABC report, two former military intercept officers who worked at the NSA charge that the government spying agency listened in on calls to the United States made by soldiers, journalists and human rights workers working in the Middle East, even after it was clear that the calls were not in any way related to national security. The NSA officials regularly passed around salacious calls such as the private "phone sex" calls of military officers calling home, according to the report.

The new information seems to contradict the statements of Bush administration officials who assured the public that the NSA's surveillance activities were directed at suspected terrorists. 
"The American public is led to believe that the NSA is eavesdropping on calls where one party is a member of al Qaeda, but in reality the NSA is monitoring and collecting the personal communications of innocent Americans," said James Bamford, who first interviewed the former intercept officers for his book, "The Shadow Factory," due out next week. "What's worse, once a telephone number or e-mail address gets picked up, it stays in the system. Every communication from the number or address is picked up, monitored and stored permanently."

The ABC report suggests that the surveillance program was ineffective and even harmful to national security because it diverted surveillance resources from actual threats. By collecting so much information about innocent people, said one of the former officers, the NSA was actually "hurting our ability to effectively protect our national security." The report also raises troubling concerns that the NSA was listening in on the calls of aid workers at organizations including the International Red Cross and Doctors Without Borders.
"What's tragic is that Congress recently enacted a law giving the NSA even more authority to collect our telephone calls and e-mails – in fact, more authority than the agency has ever had before," said Melissa Goodman, staff attorney with the ACLU National Security Project. "Rather than reining in NSA lawbreaking and abuse, Congress has given the NSA carte blanche to conduct dragnet, suspicionless monitoring of all our international communications – precisely the kind of invasive and ineffective monitoring described by whistleblowers in the ABC story."

In 2005, the New York Times reported that President Bush had repeatedly authorized the NSA to monitor the phone calls and e-mails of innocent Americans, without a warrant and in violation of the Constitution. The ACLU won an initial legal challenge to the program in August 2006, but in July 2007 the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs in the case – which included scholars and national nonprofit organizations, as well as Bamford and other journalists – had no standing to sue because they could not state with certainty that they had been wiretapped by the NSA. In February 2008, the Supreme Court denied to hear the ACLU's appeal of the case.
In July 2008, Congress enacted the FISA Amendments Act of 2008, giving the NSA even more power to spy on Americans without warrants than it exercised under its illegal surveillance program. The ACLU filed a landmark lawsuit to stop the government from conducting surveillance under the new wiretapping law, arguing that the law violates the Fourth Amendment by giving the government virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations.

Senate Majority Leader Harry Reid (D-NV) pledged to revisit the FAA again in 2009 when provisions of the controversial USA Patriot Act are due to expire.

"This is exactly what we warned Congress would happen when it was debating the FISA Amendments Act," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "The fact that NSA employees treat the most personal communications of our troops and overseas civilians as break room entertainment is shocking. This kind of untenable spying power should never have been granted. Congressional leadership is obligated to revisit this statute and fix its mistake."

More information about the ACLU's ongoing lawsuit is available online at: www.aclu.org/faa

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