The Most Transparent Administration in US History ™

A few weeks ago we fought a battle for transparency in our flagship NSA spying case, Jewel v. NSA. But, ironically, we weren't able to tell you anything about it until now.

On June 6, the court held a long hearing in Jewel in a crowded, open courtroom, widely covered by the press. We were even on the local TV news on two stations. At the end, the Judge ordered both sides to request a transcript since he ordered us to do additional briefing. But when it was over, the government secretly, and surprisingly sought permission to “remove” classified information from the transcript, and even indicated that it wanted to do so secretly, so the public could never even know that they had done so.

[...]

The Court allowed the government a first look at the transcript and indicated that it was going to hold the government to a very high standard and would not allow the government to manufacture a misleading transcript by hiding the fact of any redactions. Ultimately, the government said that it had *not* revealed classified information at the hearing and removed its request.

[...]

The transcript of a court proceeding is the historical record of that event, what will exist and inform the public long after the persons involved are gone. The government's attempt to change this history was unprecedented. We could find no example of where a court had granted such a remedy or even where such a request had been made. This was another example of the government's attempt to shroud in secrecy both its own actions, as well as the challenges to those actions.

  Electronic Frontier Foundation

Thankfully, the judge in the case was not amenable to the request in the first place, or it would have just gone through, even though the government did not have classified information in the records, just things it didn’t want us to know.

Declassified

The National Security Agency unlawfully gathered as many as tens of thousands of e-mails and other electronic communications between Americans as part of a now-discontinued collection program, according to a 2011 secret court opinion.

The 86-page opinion, which was declassified by U.S. intelligence officials Wednesday, explains why the chief judge of the Foreign Intelligence Surveillance Court ruled the collection method unconstitutional. The judge, John D. Bates, found that the government had “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.”

In the opinion, Bates also expressed deep frustration with the government, saying that it had “disclosed a substantial misrepresentation regarding the scope of a major collection program” three times in less than three years.

[...]

In addition to the October 2011 court ruling, which was heavily redacted, U.S. intelligence officials on Wednesday released other documents, including a follow-up order about the NSA’s revised collection methods.

The documents were released in response to a Freedom of Information Act lawsuit filed by the Electronic Frontier Foundation.

  WaPo

I wonder how long before the FOIA will be struck down.

UPDATE:  Declassified....and heavily redacted.

Yeah, Good Luck with That

The Domestic Surveillance Project division of the Electronic Privacy Information Center (EPIC) announced Thursday that it plans to file a petition asking the U.S. Supreme Court to vacate the Foreign Surveillance Intelligence Court (FISC) ruling which authorized the National Security Agency (NSA) to collect metadata on domestic phone calls. According to Think Progress, the privacy rights group intends to file the petition on Monday.

  Raw Story

 If Sleazey Scalia and Friends aren't dead end enough, the Obama administration has lots of tricks up its sleeve. Have a listen to EFF's lawsuit woes on the same subject (start at the 5:00 mark).   As interviewer Brad Friedman says several times: unbelievable.

William Binney and the Program

William Binney — one of the best mathematicians and code breakers in National Security Agency (NSA) history — worked for America's premier covert intelligence gathering organization for 32 years before resigning in late 2001 because he "could not stay after the NSA began purposefully violating the Constitution."

Binney claims that the NSA took one of the programs he built, known as ThinThread, and started using the program and members of his team to spy on virtually every U.S. citizen under the code-name Stellar Wind.

[...]

On July 2 Binney, along with two other former NSA employees, agreed to provide evidence in the Electronic Frontier Foundation's lawsuit (Jewel vs. NSA) that alleges the U.S. government operates an illegal mass surveillance program.

Given the latest leaks, that testimony looks rock solid.

  Business Insider

Here’s a post of mine from just about one year ago:

[NSA whistleblower William] Binney, who resigned from the NSA in 2001 over its domestic surveillance program, had just delivered a keynote speech in which he revealed what [journalist Geoff] Shively called “evidence which we have not seen until this point.”

“They’re pulling together all the data about virtually every U.S. citizen in the country … and assembling that information,” Binney explained. “So government is accumulating that kind of information about every individual person and it’s a very dangerous process.” He estimated that something like 1.6 billion logs have been processed since 2001.
  Raw Story

And here’s another one from a month later that links a video of Binney talking about the program. Worth another look in light of the Snowden revelations. Both he and the documentary filmmaker were repeatedly harassed and intimidated by federal agents.

Inching Through the Courts (Updated)

The Foreign Intelligence Surveillance Court, or FISC, ruled Wednesday that it has no objection to the release of a 2011 opinion of the court, which found that some of the National Security Agency’s surveillance programs under the FISA Amendments Act, were unconstitutional.

[...]

On Friday, the Department of Justice, or DoJ, had argued that the court’s opinion must remain secret and its release of the opinion would contradict the FISC's own rules on disclosure of classified documents, according to NBC News.

[...]

The nation’s most secretive court, as it has been called in the media, said that the 86-page classified opinion can be made public if a district court orders it.

[...]

[The] NSA’s PRISM program, which has sparked public outrage over Internet users’ privacy rights, is based on the same sections that the FISC found was circumvented by the security agency.

[...]

EFF attorney Mark Rumold welcomed the court’s ruling and said it is the first victory for a non-governmental party in the FISC.

"It's important to know that while this is a victory, it is a pretty modest one," he said. "It's the FISC realizing that the Department (of Justice) was making crazy arguments, and they quickly got rid of it. Now we have to go right back to the district court."

  IBTimes

Oh, and Greenwald says he’s working on further stories – implied to be related to the information provided him by Snowden.

UPDATE:

 

We're America.  We're special.