FRINFORMSUM 6/5/2014: Federal Judge Rules NSA Bulk Data Collection Legal –For Now, NSA Harvesting Millions of Images from the Web for its Global Facial Recognition Programs, and Much More.

A federal judge in Idaho ruled the NSA program is legal, but should be taken up by the Supreme Court. (Photo: Patrick Semansky/AP/File)

U.S. District Court Judge B. Lynn Winmill upheld the legality of the National Security Agency’s (NSA) bulk collection of American’s phone call data this week. Winmill ruled “binding precedent in the Ninth Circuit holds that call and e-mail metadata is not protected by the Constitution and no warrant is needed to obtain it.” The ruling noted, however, that U.S. District Court Judge Richard Leon’s December ruling that the NSA program likely violates the Fourth Amendment “should serve as a template for a Supreme Court opinion. And it might yet.”

The New York Times recently reported that the NSA is harvesting millions of images from the web for use in its facial recognition programs. According to documents the newspaper obtained from former NSA contractor Edward Snowden, ‘[t]he agency intercepts “millions of images per day” — including about 55,000 “facial recognition quality images.”’ A 2010 document reflected the increasing importance the agency places on digital imagery, noting “[i]t’s not just the traditional communications we’re after: It’s taking a full-arsenal approach that digitally exploits the clues a target leaves behind in their regular activities on the net to compile biographic and biometric information.” NSA chief, Adm. Mike Rogers, responded to the NYT report by saying that the agency is not collecting visual images of people in the US unless they are linked to the investigation of a foreign suspect.

A new Office of Director of National Intelligence directive that requires all employees and contractors to obtain “authorization before disclosing any intelligence-related information to the public” is confusing and frustrating many intelligence agency employees. One –anonymous– former official called the directive both outrageous and ineffective at stopping the next Snowden, while another argued it is an individuals right to talk about intelligence issues so long as no classified information is revealed.

The Supreme Court rejected an appeal from New York Times reporter James Risen over his refusal to testify in a leaks case. At issue is Risen’s refusal to testify in former CIA official Jeffrey Sterling’s leaks trial that resulted from his disclosures regarding Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, which was the subject of a chapter in Risen’s 2006 book, State of War. The Obama administration has sent mixed signals about the case, with Attorney General Eric Holder hinting last week that the government might not pursue jailing Risen for his refusal to testify, all the while pursuing the administration’s right to do so.

Sen. Dianne Feinstein released emails between Snowden and NSA’s General Counsel, saying they prove there was no “smoking gun.” Snowden responded saying the emails are deliberately incomplete. Photo: Bill Clark/CQ Roll Call

Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, released contents of a brief e-mail exchange between Edward Snowden and the NSA’s Office of General Counsel last week. While Feinstein reported that “the NSA informed the committee that it has found no evidence that Snowden expressed concerns or complaints, in email or any other form, about NSA’s intelligence activities to anyone in a position of authority or oversight,” Snowden said the e-mails were incomplete. Snowden told the Washington Post that, “[t]he NSA’s new discovery of written contact between me and its lawyers – after more than a year of denying any such contact existed – raises serious concerns.”

Snowden’s leaks about the NSA’s bulk data collection programs spurred thousands of FOIA requesters to submit records requests to the agency, and documents released to The Guardian show the agency’s FOIA staff struggled to respond and sought ways to deny releasing records en masse.  According to Archive FOIA Coordinator Nate Jones, “[f]or those who believe the public has the right to know what information the NSA is allowed to collect the conclusion drawn in this case is that the Snowden leaks worked and the Freedom of Information Act did not.”

In an unusual move, the International Committee of the Red Cross was not invited to interview the five Guantanamo detainees released in the prisoner exchange for Sgt. Bowe Bergdahl. The Obama administration also withheld its statutory 30-day notice of the exchange from members of Congress, only informing Congress about the exchange while it was underway.

Documents released through the FOIA raise the question why the FBI was investigating Michael Hastings’ reporting on Bergdahl? Hastings, who wrote “the definitive first account of Bowe Bergdahl” for Rolling Stone in 2012 –a largely unflattering depiction of the soldier–, died in a car accident in June 2013. After his death, FOIA requests filed by Jason Leopold and Ryan Shapiro to the FBI resulted in the release of heavily redacted FBI document characterizing Hastings’ reporting as “controversial,” and show the bureau extensively investigating the reporting behind the 2012 Rolling Stone article.

LA Mayor Tom Bradley gave Nelson Mandela meet the key to the city during a June 1990 visit. Photo: the Los Angeles Times.

Documents released to Ryan Shapiro in response to a FOIA lawsuit also reveal that the FBI spied on Nelson Mandela during his first visit to the US in 1990. Mandela was still on the US’ terror watch list at the time of his visit, and his party, the African National Congress, was a designated US’ terrorist organization. Considering that the CIA likely played a role in Mandela’s 1962 arrest, according to Shapiro, “[w]hat’s missing from these documents is often as illuminative as what’s disclosed. Not only did the FBI heavily redact and withhold documents, but there’s virtually no discussion of U.S. intelligence community involvement prior to Mandela’s 1990 release from prison.”

To commemorate the 25th anniversary of the Chinese government’s vicious crackdown on pro-democracy protestors at Tiananmen Square on June 4, 1989, the National Security Archive published 25 Defense Intelligence Agency (DIA) records, obtained through the FOIA, for the first time. The DIA records address the 1989 protests, which culminated in the June 4 massacre, and a range of other security-related concerns with important implications for the political longevity of the Chinese leadership.

Leading decision makers from the United Nations, Africa, the United States, and Europe gathered in the Hague from June 1 to 3 to consider the failure of the international community to prevent or effectively respond to the 1994 genocide in Rwanda. The conference was jointly sponsored by the United States Holocaust Memorial Museum and The Hague Institute for Global Justice, in cooperation with the National Security Archive to mark the 20^th anniversary of the genocide. The conference coincided with the release of newly-declassified reporting from 1994 by key members of the UN Security Council, which provides a previously unavailable day-by-day narrative of the international response to the Rwandan genocide. The documents “offer a vivid record of closed-door debates, in which the diplomats, lacking accurate information and scarred by a disastrous military mission in Somalia months earlier, voted to pull out most of the peacekeepers at the very moment that they could have curbed the killing.”

Finally, this week’s #tbt document pick! This week’s selection is a Secret June 14, 1963, memorandum –nearly a year after Nelson Mandela’s arrest–, from U. Alexis Johnson, Deputy Under Secretary for Political Affairs, to Secretary of State Dean Rusk. Johnson says he believes apartheid will eventually prove “disastrous,” but advises against imposing a total arms embargo on South Africa because its cooperation with the U.S. on aircraft landing rights, tracking stations, and ports, will be increasingly important if the U.S. can’t maintain access to the Suez Canal.

Happy FOIA-ing!