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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Support for Spying Kept Secret,|Despite Uncle Sam’s Bad Faith

MANHATTAN (CN) - Well before Edward Snowden leaked documents about the National Security Administration's massive domestic-surveillance program, the American Civil Liberties Union sought clues through the Freedom of Information Act about how government interpreted its spying powers.

The ACLU's lawsuit, filed three years ago, demanded that the government produce documents describing its interpretation of section 215 of the Patriot Act. The statute empowers the government to cull "any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities."

Snowden eliminated much of the mystery surrounding what this meant last year with unprecedented leaks of top-secret documents, starting with an order from the Foreign Intelligence Surveillance Court that forced Verizon to give the government its customers' telephone metadata.

The ACLU still wants to know what other types of information the government was scooping up.

U.S. District Judge William Pauley remarked today that Snowden's revelations "reshaped" the litigation and uncovered the government's "dissembling" in his court.

Though Pauley reamed the Justice Department and FBI's legal tactics in an 18-page ruling on Monday, he nevertheless ruled in the favor of the agencies.

Government lawyers initially tried to avoid disclosing information to the ACLU by stating that documents from the Foreign Intelligence Surveillance Court (FISC) were exempt from disclosure.

In a bid to build public confidence in the secret court, which operates out of an undisclosed room in Washington federal court, however, the government began declassifying FISC rulings weeks after Snowden's leaks emerged.

Pauley said that the government tried to explain the discrepancy in a series of arguments that contradicted each other.

"In short, the government's arguments bear the hallmarks of opportunistic rummaging rather than a coherent strategy," his opinion states.

Pauley added that "by advancing incorrect and inconsistent arguments, the government acted without the candor this court expects from it."

Having "little faith" left in the government's determinations, Pauley said that the agencies must hand him an index of the classified documents that they wish to protect.

The judge will rule later whether any of these papers must be disclosed to the ACLU.

Pauley refused, however, to force the government to reveal what other bulk collection it is doing because he said he would not "second guess its national security assessments."

"Because the executive is better equipped to determine potential harms to national security than the judiciary, it deserves considerable deference on that issue," the opinion states.

The ACLU argued that uncovering what other types of information the government collects would not expose a particular "source or method," and so it would not be classified.

Pauley wrote that this is "too narrow a view."

"A sophisticated adversary could determine what types of information the intelligence community would likely be interested in collecting in bulk and what types of information could in fact be easily collected," the opinion states. "Admitting the existence of other bulk collection programs could permit these adversaries to predict the government's activities and evade them."

The government has until Oct. 17 to submit its remaining documents to the judge.

ACLU attorney Patrick Toomey had a mixed reaction to the decision.

"While we welcome the court's decision to review some of the documents itself, we are disappointed that it is permitting the government to continue to conceal its bulk-collection programs from the public," Toomey wrote in an email. "If we have learned anything from Edward Snowden's disclosures, it is that the public must be part of the surveillance debate. But we cannot have that debate without a general understanding of the NSA's legal authorities."

The U.S. Attorneys' Office did not immediately respond to a request for comment.

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