Dec 5, 2013
The Surveillance Reforms Obama Supported Before He Was President
Posted on Aug 7, 2013
By Kara Brandeisky, ProPublica
Both bills would have ensured that defendants had a chance to challenge the legalityof Patriot Act surveillance. The Supreme Court has since held that plaintiffs who cannot prove they have been monitored cannot challenge NSA surveillance programs.
Those particular bills did not make it out of committee. But another section of the Foreign Intelligence Surveillance Act requires that the government tell defendants before it uses evidence collected under that law.
Until recently, federal prosecutors would not tell defendants what kind of surveillance had been used.
The New York Times reported that in two separate bomb plot prosecutions, the government resisted efforts to reveal whether its surveillance relied on a traditional FISA order, or the 2008 law now known to authorize PRISM. As a result, defense attorneys had been unable to contest the legality of the surveillance. Sen. Dianne Feinstein, D-Calif., later said that in both cases, the government had relied on the 2008 law, though prosecutors now dispute that account.
But that’s not the only case in which the government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin was charged with providing material support to terrorists based on surveillance evidence in Dec. 2010, his attorney, Joshua Dratel, tried to get the government’s wiretap application to the Foreign Intelligence Surveillance Court. The government refused, citing national security.
Dratel only learned that the government had used Moalin’s phone records as the basis for its wiretap application — collected under Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited the Moalin case as a success story for the bulk phone records collection program.
Reuters has also reported that a U.S. Drug Enforcement Administration unit uses evidence from surveillance to investigate Americans for drug-related crimes, and then directs DEA agents to “recreate” the investigations to cover up the original tip, so defendants won’t know they’ve been monitored.
As a senator, Obama wanted the attorney general to submit a public report giving aggregate data about how many people had been targeted for searches.
Under current law, the attorney general gives congressional intelligence committees a semiannual report with aggregate data on how many people have been targeted for surveillance. Obama co-sponsored a 2005 bill that would have made that report public. The bill didn’t make it out of committee.
As a senator, Obama wanted the government to declassify significant surveillance court opinions.
Currently, the attorney general also gives congressional intelligence committees “significant” surveillance court opinions, decisions and orders and summaries of any significant legal interpretations. The 2005 bill that Obama co-sponsored would have released those opinions to the public, allowing redactions for sensitive national security information.
Before Edward Snowden’s disclosures, the Obama Justice Department had fought Freedom of Information Act lawsuits seeking surveillance court opinions. On July 31, the Director of National Intelligence released a heavily redacted version of the FISA court’s “primary order” compelling telecoms to turn over metadata.
In response to a request from Yahoo, the government also says it is going to declassify court documents showing how Yahoo challenged a government directive to turn over user data. The Director of National Intelligence is still reviewing if there are other surveillance court opinions and other significant documents that may be released. Meanwhile, there are several bills in Congress that would compel the government to release secret surveillance court opinions.
Next item: Arctic Albedo Loss Threatens Wildlife
New and Improved Comments