FRINFORMSUM 3/20/2014: the NSA’s MYSTIC Program Powerful Enough to Swallow a “nation’s telephone program whole,” Judge Calls a DOJ Search Practice “repugnant to the Fourth Amendment,” and Much More.

Operation MYSTIC

The National Security Agency (NSA) has built a surveillance program so powerful that it can swallow a “nation’s telephone program whole.” According to documents obtained by former NSA contractor Edward Snowden and reported on by the Washington Post, this program –codenamed MYSTIC– is capable of capturing “100%” of a foreign country’s voice calls. MYSTIC’s retrieval tool, RETRO, also enables “the agency to rewind and review conversations [for] as long as a month after they take place.” The program began in 2009, reached full capacity in 2011, and last year’s secret intelligence budget (also leaked by Snowden) mentioned an effort to add “an additional target” to the MYSTIC program, though it remains unclear if any country has yet to have their data collected in its entirety.

The Inspector General for Intelligence and Special Program Assessments is the Department of Defense component that has oversight responsibilities for the NSA, and it recently reported that it has no plans to investigate the spy agency. Despite ongoing fallout from Snowden’s revelations about the NSA’s surveillance practices, Anthony C Thomas, the deputy IG, said Tuesday that not only were there no plans for an investigation, but that he was “not aware” of the NSA’s bulk phone collection practices until they were disclosed by The Guardian, and that he couldn’t quantify how much oversight his office currently performs on the NSA.

CIA director John Brennan sits between FBI head James Comey, and director of national intelligence, James Clapper. Brennan implied that it was Congressional staff, not the intelligence agency, that acted inappropriately. Photo: Alex Wong/Getty Images

Oversight issues continue to plague the CIA’s relationship with one of its congressional watchdogs, the Senate Intelligence Committee. Committee Chairwoman, Sen. Dianne Feinstein (D-CA), launched a blistering attack against the agency on the Senate floor last week, accusing the CIA of concealing and deleting documents that her committee was reviewing for its still-secret 6,000 page report on the agency’s defunct torture program. After her speech, the CIA filed two criminal referrals with the Department of Justice, alleging it was Senate staff that acted inappropriately by accessing CIA records they were not cleared to view. It’s worth noting that the CIA general counsel who filed the criminal claims on behalf of the agency, Robert Eatinger, is mentioned 1,600 times in the Senate report for, among other things, providing the Department of Justice misleading information about the torture program. The FBI is reported to be investigating both of the CIA’s criminal claims to see if full-scale investigations are required, though DOJ officials have indicated the agency is reluctant to get involved in the increasingly politicized melee.

A federal judge decided last week that the CIA’s common practice of refusing to release soft copies (electronic versions) of its records –ostensibly for security reasons– might be illegal. IT expert Jeffrey Scudder is suing the agency for refusing to release 419 Studies in Intelligence articles in electronic format in response to his FOIA request. Scudder contends that the CIA is frustrating his efforts to obtain the documents –and charging him double for doing so– by claiming the documents may only be released in paper form, even though the documents are already in electronic format. District Court judge Beryl Howell agreed with Scudder, writing that “[w]here, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.” Secrecy News’ Steven Aftergood notes that ‘[i]n view of the unresolved factual disputes, and considering that “both parties allege bad faith on the part of the other,” Judge Howell refused to grant summary judgment to either side.’

Elsewhere in the courts, a federal judge called the DOJ’s request for warrants for its overly-broad email searches “repugnant to the Fourth Amendment.” Magistrate Judge John M. Facciola’s comments were delivered in a case about a defense contractor that highlighted the broad authority the agency believes it “has in searching email accounts.” Facciola wrote that “[t]he government continues to submit overly broad warrants and makes no effort to balance the law enforcement interest against the obvious expectation of privacy email account holders have in their communications,” and irrespective to their relevance to a particular investigation.

Director of National Intelligence General Counsel Robert S. Litt.

The Director of National Intelligence’s general counsel, Robert S. Litt, told the Privacy and Civil Liberties Oversight Board on Wednesday that requiring the NSA to seek court approval for its queries of Americans’ e-mails and phone calls would create an “operational burden” so heavy that it would make the Foreign Intelligence Surveillance Court “extremely unhappy.” Board member Patricia Wald replied, “I suppose the ultimate question for us is whether or not the inconvenience to the agencies or even the unhappiness of the [surveillance] court would be the ultimate criteria.”

FAO Schwarz Jr., the former chief counsel for the Church Committee, which led to the creation of the Senate and House intelligence oversight committees, is now leading calls for a new investigative panel into the CIA and NSA’s surveillance practices. In an open letter addressed to congress and the president, Schwarz wrote that “[m]isleading statements by agency officials to Congress, the courts and the public have undermined public trust in the intelligence community and in the capacity for the branches of government to provide meaningful oversight.”

As this week’s freedom of information news summary and a host of great Sunshine Week reports go to show, the fight to improve open government still has a ways to go. Keep filing those well-constructed FOIA requests, and happy FOIA-ing!