NSA Lied to Get Permission to Spy on Americans

Declassified opinion from secret court reveals spies’ lies.

NSA Lied to Get Permission to Spy on Americans

A heavily redacted section from the secret court's declassified opinion. (Illustration: Electronic Frontier Foundation)

TakePart News Editor Shaya Tayefe Mohajer is a journalist who has worked in many corners of the world for major news organizations.

America’s spies lied to federal judges to finagle permission to gather tens of thousands of emails and other communications for several years, according to a freshly declassified federal court opinion.

Judge John D. Bates lashed out against the National Security Agency’s tactics, saying they may have violated a criminal law against spying on Americans in the heavily redacted, 86-page Federal Intelligence Surveillance Court opinion.

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Bates wrote.

The opinion also says that in its “flawed depiction,” the NSA pretended to be after “big business records” of telephone calls.

It took a lawsuit for the secret court’s opinion to become public. The Electronic Frontier Foundation, a privacy group, waged a year of litigation at a time when public awareness of domestic spying has increased, thanks to the high-profile leak of former NSA/CIA computer specialist Edward Snowden.

EFF spokesman Dave Maass told TakePart on Thursday that the win was “epic” for the group, because at first they struggled to figure out how to even file suit with the secret court. Lawyers there believe the case is just the “tip of the iceberg,” and Snowden’s revelations brought a level of public interest to the case that helped push back the curtain of government secrecy.

The opinion found that much of the NSA’s collection is consistent with the Foreign Intelligence Surveillance Act and the Fourth Amendment, but some of it violated those standards. Intelligence officials say they decided in April 2012 to purge all the data that was deemed to be in violation.

Under a program code-named PRISM, which was exposed by Snowden, the NSA collects more than 250 million Internet communications a year, most of them from sites like Google, Yahoo! and AOL. Only about nine percent of those communications were deemed inappropriate by the federal court because they were “wholly domestic,” meaning they were between Americans. The law is authorized for monitoring a selection of foreign communications.

EFF Staff Attorney Mark Rumold called the release of the opinion “just one step in advancing a public debate on the scope and legality of the NSA’s domestic surveillance programs.”

Upon release, Director of National Intelligence James R. Clapper wrote a statement saying the declassification was “not done lightly” but came following direction from President Barack Obama to make public as much information as possible “about certain sensitive programs.”

Maass was critical of the claim that Obama’s mandate had much to do with the release.

“That’s kind of disingenuous. If these (Snowden) leaks hadn’t come out, we wouldn’t be having this discussion,” said Maass. “We’ve been yelling about this for years and we’d gotten nowhere before these leaked documents.”

Earlier this month, the chief judge of the secret court told The Washington Post that the court’s ability to oversee the government’s vast spying networks is limited-to-nonexistent because it relies on the government to self-report improper spying.

 

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