Justice Department sued for hiding secret NSA surveillance program

The US Justice Department is being sued after failing to adhere to
Freedom of Information Act requests for documents on a federal
surveillance program that has targeted the email and phone conversations
of Americans throughout the last five years.
The Electronic Frontier Foundation, a San Francisco-based advocacy
groups that fights to protect civil liberties in the digital age, filed a
lawsuit on Thursday this week that names the Department of Justice as
the sole defendant. The EFF charges that the DoJ violated the
Freedom of Information Act, or FOIA, by failing to expedite previous
requests filed with the government for documents relating to a 2008
amendment included in the Foreign Intelligence Surveillance Act. Under
that year’s update to FISA, feds were awarded legal wiggle room to
collect and comb through any communication originating in the United
States that is sent abroad through email or phone, all under the guise
of national security. The EFF and others attest that the government has
extensively violated the US Constitution by doing as such, though, and
is now suing the DoJ not for ongoing abuse of the Fourth Amendment’s
protection against unreasonable search and seizure, but for the
department’s failure to quickly honor the FOIA request and for wrongful
withholding of agency records.“The FISA Amendments Act (FAA)
of 2008 gave the NSA expansive power to spy on Americans' international
email and telephone calls,” the EFF explains in an official statement to the media that was released in conjunction with this week’s lawsuit. “However,
last month, in a letter to Senator Ron Wyden, a government official
publicly disclosed that the NSA's surveillance had gone even further
than what the law permits, with the Foreign Intelligence Surveillance
Court (FISC) issuing at least one ruling calling the NSA's actions
unconstitutional.”In the DoJ complaint filed on Thursday,
the EFF quotes Kathleen Turner from the Office of the Director of
National Intelligence, who in July 2012 provided Sen.
Wyden with a classification review of three statements concerning
Section 702 of the FAA. Although the director wrote to the lawmaker by
first acknowledging that her office found that some intelligence
collected by the National Security Administration was “reasonable under the Fourth Amendment,” she added,
“It is also true that on at least one occasion the [FISC] held that
some collection carried out pursuant to the Section 702 minimization
procedures used by the government was unreasonable under the Fourth
Amendment.”“I believe that the government’s
implementation of Section 702 of FISA has sometimes circumvented the
spirit of the law, and on at least one occasion the [FISC] has reached
this same conclusion,” Ms. Turner writes in the letter, dated July 20 of this year.“This
disclosure confirmed previous reports that Section 702 surveillance had
‘intercepted the private e-mail messages and phone calls of Americans .
. . on a scale that went beyond the broad legal limits established by
Congress’,” the EFF writes, referencing a 2009 article published in
the New York Times that was among one of the first of few mainstream
write-ups on the blanketing surveillance program.In a press release, EFF Open Government Legal Fellow Mark Rumold says, "For
years we've seen news reports in the New York Times and other outlets
about widespread government spying going beyond the broad powers granted
in the FAA, but we've yet to get any real answers about what is going
on.”"When law-breaking is allowed to remain secret,
there's no accountability or way to monitor future abuses. It's time for
the government to come clean and tell us about the NSA's
unconstitutional actions,” Rumold adds.On July 26, 2012, the
EFF filed a FOIA request for any written opinion or order that referred
to the collection of intelligence by the federal government under
Section 702. The EFF notes in this week’s complaint that they sought an
expedited return of the requested records as allowed under the Freedom
of Information Act, yet more than one month later has not received any
of the requested evidence. “Not only has Defendant failed to
expedite the processing of Plaintiff’s requests, it has also exceeded
the generally applicable twenty-day deadline for the processing of any
FOIA request,” the EFF writes. In May of this year, Sen.
Wyden signed his name to a letter sent to the NSA co-authored by Sen.
Mark Udall asking for the agency to identify exactly “how
many people inside the United States have had their communications
collected or reviewed under the authorities granted by section 702” of the FISA Amendment Act. When the NSA responded one month later, Inspector General I. Charles McCullough wrote that a “review of the sort suggested would itself violate the privacy of US persons.”“All
that Senator Udall and I are asking for is a ballpark estimate of how
many Americans have been monitored under this law, and it is
disappointing that the Inspectors General cannot provide it,” Sen. Wyden responded to Wired’s Danger Room at the time. “If
no one will even estimate how many Americans have had their
communications collected under this law then it is all the more
important that Congress act to close the ‘back door searches’ loophole,
to keep the government from searching for Americans’ phone calls and
emails without a warrant.”The EFF is demanding that the
Justice Department immediately process the records previously requested
under FOIA and are asking for the feds to compensate them for any
attorney fees incurred in their lawsuit against the government. "As Congress gears up to reconsider the FAA, the American public needs to know how the law has been misused," EFF Senior Counsel David Sobel says. "The DOJ should follow the law and release this information to the American public."



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