As Americans mark the anniversary of the terrorist attacks of 9/11, freshly released documents revealed Tuesday that the U.S. National Security Agency illegally spied on Americans for three years, from 2006 to 2009, all while misleading secret courts to get permission to do it.
Only about 10 percent of the phone calls monitored by the NSA during that time period actually met the legal standard for “reasonable, articulable suspicion.”
The documents were released by Director of National Intelligence James Clapper in response to a lawsuit brought by the online rights advocacy group Electronic Frontier Foundation.
That these documents should be made public during the week that we remember the largest terrorist attack on American soil is particularly fitting since 9/11 is, in part, the reason NSA’s spy operation on our citizens was initially authorized.
Shortly after the attacks that killed nearly 3,000 people in New York, Virginia and Pennsylvania, then-President George W. Bush authorized the NSA to conduct broad domestic surveillance of the ilk that had previously been banned for decades. Bush’s newly built spying regime was bolstered a short time later by the passage of the Patriot Act.
One Patriot Act passage in particular—Section 215 —allowed the secret Foreign Intelligence Surveillance Act court to authorize blanket warrants for federal authorities to obtain massive swaths of personal data, including bank, doctor and phone company records. Under Section 215, the government does not need to prove any terrorist activity to request these documents, only to show that the information is “relevant” to an ongoing investigation.
What exactly “relevant” means is still unclear. The EFF is still waiting for the government to turn over its interpretation of the word.
What is clear, however, is that the burden of proof for “relevant,” whatever the definition, is far less stringent than being considered “associated with a terrorist group.” So Tuesday’s revelation that the NSA had misled FISA in its requests for broad warrants is particularly damning. The result was a spy operation far more widespread than the court intended to allow.
By 2006, the NSA had set up an operation collecting the phone and Internet records of millions of Americans.
That same year, retired AT&T worker Mark Klein went public with revelations that he had helped the NSA construct a secret room in the company’s San Francisco office, which permitted the agency to monitor global Internet and phone traffic. Similar monitoring stations, he learned, were being constructed in Seattle, San Jose, Los Angeles and San Diego.
In response to Klein’s leak, Bush claimed the program was limited to monitoring foreign phone and Internet activity. Klein’s revelations were so damaging, however, they forced then-U.S. Attorney General Michael Mukasey to demand legal immunity for any telecommunications company that voluntarily assisted the government in its spy operation. His wish was granted in the form of the Protect America Act of 2007 and the FISA Amendments Act of 2008.
This past June, using documents obtained from whistleblower Edward Snowden, The Washington Post reported that the NSA and FBI were collecting and storing inordinate volumes of video chats, photos, emails, and other documents from users of Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.
The program was code-named PRISM.
Additional documents from Snowden obtained by The Guardian revealed that the NSA had ordered the communications company Verizon, on an “ongoing, daily basis,” to turn over all records of telephone calls made within its system – both foreign and domestic.
On June 11, the American Civil Liberties Union sued the NSA on behalf of Verizon customers, questioning the legality of collecting “metadata” on millions of Americans.
Twelve years after 9/11, the repercussions of the security state that was constructed in response to the attacks are still being felt.
Bush famously noted that Al-Queda attacked America on September 11 because “they hate our freedom.”
As Tuesday’s document release made clear, the freedom from government intrusion that Americans enjoyed when he spoke those words no longer exists.