FRINFORMSUM 1/23/2014: Watchdog Report Says NSA Program Illegal and Should be Shut Down, Secret Budget Provision Blocks Drone Program Transfer, the George W. Bush Library Now Open for FOIA Requests, and More.

An independent federal watchdog report finds the NSA’s bulk phone records collection program illegal and recommends it be shut down. (Photo: Patrick Semansky/AP/File)

A report scheduled for release today by the independent federal Privacy and Civil Liberties Oversight Board found that the National Security Agency’s (NSA) bulk phone call collection records program is illegal and should be terminated. The report found that the program not only  “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” but was also unable to find any “instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” The Oversight Board’s findings also shed light on the history of the Foreign Intelligence Surveillance Court (FISC), which has issued orders to phone companies for their records since 2006, but only offered a legal rationale for doing so last August.

President Obama consulted the Privacy and Civil Liberties Oversight Board before delivering his highly anticipated NSA speech last Friday, though the President argued that while changes were necessary to the bulk records collection program, it should continue nonetheless. One of the specific changes recommended in the President’s speech was transferring the bulk phone records from the NSA’s custody to private phone companies, a notion the private companies do not endorse and is meeting stiff resistance in Congress. Senate Intelligence Committee Chairwoman Dianne Feinstein expressed concern at the idea that NSA data might be stored outside the agency, saying in an interview Sunday on “Meet the Press,” that privacy advocates calling for changes don’t understand the threat, and that “[n]ew bombs are being devised. New terrorists are emerging, new groups. Actually, a new level of viciousness. And I think we need to be prepared. I think we need to do it in a way that respects people’s privacy rights.” President Obama instructed Attorney General Eric Holder and Director of National Intelligence, James Clapper, to devise a workable solution to who stores the bulk data by March 28, but no meeting has been scheduled between phone companies and government officials.

Google, Microsoft, and others did not receive the reassurances they wanted from President Obama’s speech last week. The IT companies had hoped the President would announce that the government would no longer hack into their data, stockpile flaws in their operating systems, or weaken their encryption systems, all practices that have put them on the defensive when conducting international business. Fred H. Cate, the director of the Center of Applied Cybersecurity Research at Indiana University, said in a New York Times interview that “[t]he most interesting part of this speech was not how the president weighed individual privacy against the N.S.A, but that he said little about what to do about the agency’s practice of vacuuming up everything it can get its hands on.”

The Department of Justice (DOJ) is refusing to turn over “certain other” FISC records in response to an ACLU FOIA lawsuit.  The DOJ’s refusal to disclose the documents “has raised suspicions within the ACLU that the government continues to hide bulk surveillance activities from the public.” ACLU attorney Alexander Adbo referred specifically to a CIA program to collect international money transfers in bulk, revealed in November by the Wall Street Journal and the New York Times, saying “[i]t appears that the government is concealing the existence of other bulk collection programs under the Patriot Act, such as the CIA’s reported collection of our financial records.” However, DNI James Clapper’s office did release 25 newly declassified FISC rulings on their tumblr page late last week, though it did so “without revealing that the disclosures were spurred by lawsuits.”

A secret provision in the budget bill that blocks any transfer of the drone program from the CIA to the Pentagon is coming under fire. Photo: Ethan Miller/Getty Images

Congress blocked President Obama’s attempt to shift control of the foreign U.S. drone campaign from the CIA to the Pentagon in a secret provision in the government spending bill last week, spurring sharp criticism from Senator John McCain for “meddling” with drone policy. The move reflected “some lawmakers’ lingering doubts about the U.S. military’s ability to conduct strikes against al-Qaeda and its regional affiliates without hitting the wrong targets and killing civilians.” Despite the criticism, an annual study recently released by the British Bureau of Investigative Journalism may support the argument that the drone program should stay at the CIA, noting that “CIA drone strikes against militants in Pakistan killed no more than four civilians last year… the lowest number of reported civilian deaths since the drone program began in 2004.”

The DOJ found that the company that conducted Edward Snowden’s background check, U.S. Investigations Services, “fraudulently signed off” on over 650,000 incomplete security checks in recent years. The company also did the background check on the Washington Navy Yard shooter, Aaron Alexis. Currently, roughly 3.5 million people hold security clearances in the U.S.

The American Psychological Association has decided not to pursue its case against member John Leso, a former army reserve major that was involved in torturing Mohammed al-Qahtani at Guantanamo Bay. Leso also contributed to the October 2002 memo, “Counter-Resistance Strategies”, for Guantánamo staff “under pressure from the chain of command to produce intelligence from the detainee population.”

Finally this week, the George W. Bush Presidential Library is now open for FOIA requests. Five years have passed since President Bush left office, meaning the public can file FOIA requests for documents from his two terms in office. According to a CBS report, the Bush Library has 70,000,000 paper records, 80 terra bytes of electronic records, 1 billion pages of emails, 4 million photos, and 43,000 artifacts in its possession.

Happy FOIA-ing!