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Warrantless Wiretapping Program

Originally published at EPIC  on 9/8/14

EPIC (Finally) Obtains Memos on Warrantless Wiretapping Program: More than eight years after filing a Freedom of Information Act request for the legal justification behind the “Warrantless Wiretapping” program of President Bush, EPIC has now obtained a mostly unredacted version of two key memos (OLC54) and (OLC85) by former Justice Department official Jack Goldsmith. EPIC requested these memos just four hours after the New York Times broke the story about the program in December 2005. When the agency failed to release the documents, EPIC filed a lawsuit. The ACLU and the National Security Archive later joined the case. These two Office of Legal Counsel memos offer the fullest justification of the warrantless wiretapping program available to date, arguing that the president has inherent constitutional power to monitor American’s communications without a warrant in a time of war. But some parts of the legal analysis, including possibly contrary authority, are still being withheld. The warrantless wiretapping program was part of “Stellar Wind,” a broad program of email interception, phone record collection, and data collection undertaken by the NSA without the approval of Congress.

 
Poster of Uncle Sam's unwarranted wiretaps

Background

In December 2005, the New York Times reported that President Bush secretly issued an executive order in 2002 authorizing the National Security Agency to conduct warrantless surveillance of international telephone and Internet communications on American soil. President Bush acknowledged the existence of the NSA surveillance program and vowed that its activities would continue.

EPIC submitted FOIA requests to the NSA and four Department of Justice components just hours after the existence of the warrantless surveillance program was first reported. Noting the extraordinary public interest in the program – and its potential illegality – EPIC asked the agencies to expedite the processing of the requests.

The DOJ agreed that the requests warranted priority treatment, but has now failed to comply with the FOIA’s usual time limit of twenty working days. In January 2006, EPIC filed a lawsuit (pdf) against the DOJ to compel the immediate disclosure of information concerning the NSA surveillance program, and asked (pdf) the federal district court in Washington to issue a preliminary injunction requiring the release of relevant documents within 20 days. EPIC’s case has been consolidated with a lawsuit (pdf) filed by the American Civil Liberties Union and National Security Archive concerning the same documents.

On February 16, 2006, U.S. District Judge Henry H. Kennedy ordered (pdf) the DOJ to process and release documents concerning the NSA program within 20 days, or by March 8, 2006. The day before it was required to disclose the documents, the Justice Department asked (pdf) Judge Kennedy for an additional four months to process some of the material responsive to EPIC’s request, which Judge Kennedy has allowed (pdf).

Once the DOJ completes its processing of the material, any decision to withhold the requested documents will be subject to judicial review, and Judge Kennedy will have the ability to order “in camera” production of the material and make an independent determination concerning public disclosure.

The NSA has released two internal messages (pdf) in response to EPIC’s request, but is withholding all other responsive material. EPIC filed suit (pdf) against the NSA in February 2006, asking a federal court to compel the release of the withheld documents. EPIC later dismissed the case.

For more information see EPIC: EPIC v. DOJ: Warrantless Wiretapping Program. (Sep. 8, 2014)


 

  • In EPIC Open Government Lawsuit, Former Official Concludes that Surveillance Program was Illegal. Documents obtained by EPIC in a Freedom of Information Act lawsuit against the Department of Justice reveal that a former top official in the Justice Department doubted that the domestic surveillace program was allowed under the Authorization for Use of Military Force Resolution. In an e-mail, David S. Kris wrote that the the Justice Department’s defense of the program, “had a slightly after-the-fact quality or feeling to them.” Other materials released by the Bush Administration (pdfs part 1, part 2, part 3, part 4) include various justifications for the program and transcripts of television appearances by the Attorney General. In a motion filed last night, the Justice Department has asked (pdf) the court for an additional four months to process classified material responsive to EPIC’s request. (March 8, 2006)
  • Court Orders Justice Department to Release NSA Surveillance Documents. In response to a Freedom of Information Act lawsuit (pdf) filed by the Electronic Privacy Information Center, a federal judge has ordered (pdf) the Department of Justice to process and release documents related to the Bush Administration’s warrantless surveillance program by March 8. It is the first court opinion addressing the controversial domestic spying operation. “President Bush has invited meaningful debate about the warrantless surveillance program,” U.S. District Judge Henry H. Kennedy wrote. “That can only occur if DOJ processes [EPIC’s] FOIA requests in a timely fashion and releases the information sought.” (Feb. 16, 2006)
  • Federal Judge Hears Arguments on EPIC’s Request for Documents. On February 10, 2006, U.S. District Judge Henry H. Kennedy heard arguments on EPIC’s request (pdf) for an emergency order requiring the Department of Justice to process and release documents concerning the National Security Agency’s warrantless surveillance program within 20 days. The documents at issue include Justice Department memoranda addressing the purported legality of the program – material that the Administration has thus far refused to provide to the Senate Judiciary Committee for purposes of congressional oversight. (Feb. 10, 2006)
  • EPIC Files Second Lawsuit for NSA Surveillance Documents. In a Freedom of Information Act complaint (pdf) filed today in federal court, EPIC is seeking the release of National Security Agency documents detailing the Administration’s warrantless domestic surveillance program. EPIC filed a similar lawsuit (pdf) last month against the Department of Justice, which has played a key role in authorizing, implementing and overseeing the NSA’s warrantless surveillance activities. A hearing in that case is scheduled for February 10. (Feb. 6, 2006)
  • EPIC Sues Justice Department for Domestic Surveillance Documents. Today EPIC filed a Freedom of Information Act lawsuit (pdf) against the Department of Justice, asking a federal court to order the disclosure of information about the Administration’s warrantless domestic surveillance program within 20 days. The Justice Department has played a key role in authorizing, implementing and overseeing the National Security Agency’s domestic surveillance activities. EPIC argues in its court papers (pdf) that the debate surrounding the program “cannot be based solely upon information that the Administration voluntarily chooses to disseminate.” For more information, see EPIC’s press release. (Jan. 19, 2006)
  • First NSA Documents on Spy Scandal Released. EPIC has obtained the first Freedom of Information Act documents released by the National Security Agency on its controversial surveillance program. The documents, which are internal messages (pdf) from the agency’s director to staff, defend the NSA’s warrantless eavesdropping and discourage employees from discussing the issue with the news media. (Jan. 4, 2006)
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