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FRINFORMSUM 5/15/2014: Senators Slam DOJ for Contributing to “Culture of Misinformation,” Sprint was Given Legal Rationale for NSA Domestic Spying, and Much More.

May 15, 2014

sens letterSenators Mark Udall (D-CO) and Ron Wyden (D-OR) sent a letter to Solicitor General Donald B. Verrilli criticizing him and the Department of Justice for its misleading statements about the National Security Agency’s (NSA) warrantless surveillance practices before the Supreme Court in 2013. In their letter, the senators accused the White House of attempting to “ignore or justify” the DOJ’s statements, and contributing to a “culture of misinformation” by the executive branch regarding its surveillance programs.

Solicitor General Verrilli made the misleading statements before the Supreme Court in 2013 during the Clapper v. Amnesty International case. During the case, Verrilli erroneously argued that defendants were notified whenever information used against them was obtained pursuant to Section 702 of the FISA Amendments Act of 2008. While the DOJ is now –belatedly– informing defendants when evidence used against them was obtained by warrantless surveillance, it wasn’t doing so at the time of the Clapper case. Verrilli also argued that Section 702 surveillance was done directly on foreign suspects, whereas it was actually interpreted by the NSA to allow the inclusion of wholly-domestic communications when a foreign suspect’s identifier, such as an email address, was mentioned in a communication.

Documents recently posted to the Office of the Director of National Intelligence’s website reveal that in 2010 Sprint was shown the secret legal basis for the NSA’s dragnet domestic surveillance practices. Sprint was shown the information after threatening to file a court challenge over the NSA’s request for its records, and was the only telecommunications company to demand –or receive– the program’s legal underpinnings. “But after being shown the documents, the company dropped its challenge and continued to turn over customers’ call-detail records to the NSA.”

NSA head Adm, Mike Rogers promises to make his agency more transparent. Photo: Reuters/Larry Downing

NSA head Adm. Mike Rogers promises to make his agency more transparent. Photo: Reuters/Larry Downing

Steven Aftergood of the Federation of American Scientists recently reported that the Office of the Director of National Intelligence is now requiring all employees and contractors to obtain “authorization before disclosing any intelligence-related information to the public.” This new directive pertains to information that is classified and unclassified and applies broadly to any information generated by ODNI “that discusses operations, business practices, or information related to the ODNI, the IC, or national security.” ODNI responded by saying “[r]ecent media reports have misconstrued ODNI’s policy for pre-publication of information to be publicly released,” arguing that its new policy is not significantly different from previous ones, a claim that is hard to swallow considering none of the previous policies applied to unclassified information. Meanwhile, Adm. Mike Rogers said in his first interview since taking control of the NSA that he vowed to “lead the embattled spy agency with greater transparency as it balances individual rights against the rising risk of a destructive cyber attack against the United States.”

The Guardian, via documents leaked by Edward Snowden and described in Glenn Greenwald’s book No Place to Hidereported that the NSA allegedly tampers with US-made computer hardware before re-packaging and shipping the products overseas. In his book, Greenwald refers to a June 2010 report that outlines the NSA’s practice of “intercepting US-made hardware, embedding backdoor surveillance tools, then repackaging the equipment and sending it onto international customers,” –a practice the US recently accused Chinese telecom giant Huawei of, eventually forcing the company out of the US market.

The Prowler units perimeter.  Image:  Carol Leonnig and Peter Wallsten/The Washington Post

The Prowler unit’s perimeter. Image: Carol Leonnig and Peter Wallsten/The Washington Post

The Washington Post revealed that members of the elite Secret Service unit Prowler, which is tasked with patrolling the White House, were ordered by the agency director to abandon their post to watch his personal friend for two months in 2011. The detail, known as Operation Moonlight, sent the agents to a Maryland suburb, nearly an hour’s drive from the White House. The agents involved were concerned about the legality of their re-assignment, and some reported the issue to the Secret Service’s parent agency, the Department of Homeland Security. According to the Post, “[p]eople familiar with the operation said a Senate committee’s recent finding that the former DHS ­inspector general softened and delayed investigations  — particularly those critical of administration officials — renewed frustration that the issue may have not been properly investigated.”

The debate surrounding whether or not to transfer control of the CIA’s lethal drone program to the Pentagon intensified this week. McClatchy DC reported that in the wake of a Pentagon-led drone attack that killed a dozen Yemeni civilians last December, an attack that was based on intelligence the CIA later called questionable, some members of Congress believe the Pentagon and the Joint Special Operations Command are “not as careful as the CIA, and shouldn’t be given responsibility for drone killings.” This February, Director of National Intelligence James Clapper publicly acknowledged the existence of the CIA drone program for the first time in a Senate Armed Services Committee hearing, during which Sen. Bill Nelson (D-FL) asked Clapper to confirm if the White House was considering “shifting the use of drones, unmanned aerial vehicle strikes, from the CIA to the DOD,” to which Clapper responded, “Yes, sir, it is. And again, that would also be best left to a closed session.” Congress, however, had already “secretly slipp[ed] language into the omnibus spending bill that preserves the CIA’s role in lethal counterterrorism operations,” restricting the Obama administrations ability to transfer the program to the Pentagon.

The New York Police Department recently shut down its controversial Demographics Unit, which came under intense scrutiny for spying on Muslim neighborhoods and designating entire mosques “terrorism enterprises.” The NYPD’s Citywide Debriefing Team, however, still scours NYC jails looking for predominately Muslim immigrants to recruit as potential informants, demonstrating “that the department has not backed away from other counterterrorism initiatives that it created in the years after the Sept. 11 attacks.”

The Archive’s latest web posting examines the fascinating story behind the 1979 publication of Kermit Roosevelt’s book, Countercoup: The Struggle for the Control of Iran, which was delayed by threats from British Petroleum and the Iran Hostage Crisis. Internal CIA deliberations released through the FOIA and provided to the Archive by the original requester reveal Roosevelt agreed to delete all mention of MI6 from the book and made over 150 other changes that rendered it “essentially a work of fiction.” Visit the Archive to read the strange odyssey of Roosevelt’s book.

Be sure to check out Washington Free Beacon reporter C.J. Ciaramella’s first FOIA Rundown, the first installment from his new weekly newsletter on FOIA policy and transparency issues. The Archive is always excited to see reporters like C.J. dedicate their time and expertise to such important issues.

Boris Yeltsin in front of the Parliament on 08.19.1991 protesting the coup and Gorbachevs house arrest.

Boris Yeltsin in front of the Parliament on 08.19.1991 protesting the coup and Gorbachev’s house arrest.

Finally this week, the Archive’s #tbt document pick! This week’s pick is from a 2011 posting, The August 1991 Coup in Moscow, 20 Years Later, which examines the documents behind the coup that intended to topple Soviet president Mikhail Gorbachev but ultimately invigorated the Russian democratic opposition and sped up the collapse of the USSR. The #tbt document pick itself –a transcript from the August 21, 1991, First Extraordinary Session of the Supreme Soviet of the Russian Federation– brings the reader into the halls of the legendary Russian White House, to the extraordinary session of the Supreme Soviet of the Russian Federation at the exact moment of the triumph of the democratic resistance to the coup. Enjoy!

Happy FOIA-ing!

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