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White House Tries To Prevent Judge From Ruling On Surveillance Efforts CHARLIE SAVAGE and DAVID E. SANGER NY Times December 22, 2013 The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets. In a set of filings in the two long-running cases in the Northern District of California, the government acknowledged for the first time that the N.S.A. started systematically collecting data about Americans’ emails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants. The government had long argued that disclosure of these and other secrets would put the country at risk if they came out in court. But the government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency. “Disclosure of this still-classified information regarding the scope and operational details of N.S.A. intelligence activities implicated by plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States,” wrote the director of national intelligence, James R. Clapper Jr. So, he said, he was continuing to assert the state secrets privilege , which allows the government to seek to block information from being used in court even if that means the case must be dismissed. The Justice Department wants the judge to dismiss the matter without ruling on whether the programs violated the First or Fourth Amendment.

White House Tries To Prevent Judge From Ruling On Surveillance Efforts

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The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets. In a set of filings in the two long-running cases in the Northern District of California, the government acknowledged for the first time that the N.S.A. started systematically collecting data about Americans’ emails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants. The government had long argued that disclosure of these and other secrets would put the country at risk if they came out in court.

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White House Tries To Prevent Judge From Ruling On Surveillance EffortsCHARLIE SAVAGE and DAVID E. SANGERNY TimesDecember 22, 2013

The Obama administration moved late Friday to prevent a federal judge in California from ruling on the constitutionality of warrantless surveillance programs authorized during the Bush administration, telling a court that recent disclosures about National Security Agency spying were not enough to undermine its claim that litigating the case would jeopardize state secrets. In a set of filings in the two long-running cases in the Northern District of California, the government acknowledged for the first time that the N.S.A. started systematically collecting data about Americans’ emails and phone calls in 2001, alongside its program of wiretapping certain calls without warrants. The government had long argued that disclosure of these and other secrets would put the country at riskif they came out in court.

But the government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor,that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency.

“Disclosure of this still-classified information regarding the scope and operational details of N.S.A. intelligence activities implicated by plaintiffs’ allegations could be expected to cause extremely grave damage to the national security of the United States,” wrote the director of national intelligence, James R. Clapper Jr.

So, he said, he was continuing to assert the state secrets privilege, which allows the government to seekto block information from being used in court even if that means the case must be dismissed. The Justice Department wants the judge to dismiss the matter without ruling on whether the programs violated the First or Fourth Amendment.

The filings also included similar declarations from earlier stages of the California litigation, which were classified at the time and shown only to the court but were declassified on Friday. The judge, Jeffrey S. White of the Northern District of California, had ordered the government to evaluate how thedisclosures since Mr. Snowden’s leaks had affected its earlier invocations of the state secrets privilege. The plaintiffs have until late January to file a response. Cindy Cohn, the legal director for the Electronic Frontier Foundation, which is leading one of the cases, called the government’s assertion “very troubling.” She said that despite the Snowden revelations, it was still essentially saying, “We can’t say whether the American people have been spied on by their government.”

Mr. Clapper’s unclassified affidavit to the court — he also filed a classified version, the documents state — contrasts sharply with the findings of President Obama’s advisory committee on signals intelligence, which said in a report made public on Wednesday that the collection of bulk telephone data was of little proven value.

The panel’s experts concluded that “there has been no instance in which N.S.A. could say with confidence that the outcome would have been different” in a terror investigation without the collection of the telephone data. “Moreover, now that the existence of the program has been disclosed publicly, we suspect that it is likely to be less useful still.”

Mr. Clapper, however, suggested that the program was one of many that needed to continue, and he discussed a litany of threats, mostly emanating from Al Qaeda and its affiliates, that he said made the program vital. He argued that revealing additional details, including whom it targets or how companies like AT&T and Verizon have given the N.S.A. access to its equipment and data, would be harmful.

“Disclosing or confirming further details about these activities could seriously undermine an important tool — metadata collection and analysis — for tracking possible terrorist plots,” he wrote, and could reveal methodology, thus “helping foreign adversaries evade detection.”

Still, Mr. Clapper’s description of the program as “an important tool” for tracking possible plots was a downgrade in rhetorical urgency. In earlier, now-declassified court filings, he and other officials had portrayed it as “an essential tool.”

Mr. Obama, in a news conference on Friday, strongly suggested that he was looking for a way to split the difference between these two views. He stopped short of endorsing the advisory group’s

recommendation that the data should be held by telecommunications companies or a private consortium that has yet to be created. “Just because we can do something doesn’t mean we necessarily should,” he said, repeating a line he has used often. The newly declassified affidavits discuss a now-familiar list of threats to the United States coming from Al Qaeda and groups that share some of its ideology, including a plot in 2006 to blow up airliners over the Atlantic Ocean and the attempted car bombing in Times Square in 2010. But one of the documents makes reference to a renewed effort by AlQaeda to obtain a nuclear weapon after 2005. It did not cite evidence.

The California litigation over warrantless surveillance represents the remnants of a wave of lawsuits filed in 2006 after The New York Times revealed that the Bush administration had authorized a program of wiretapping without warrants. Most of the initial suits were filed against telecommunications companies and were dismissed after Congress passed a law retroactively immunizing them for participating in the programs.

One of the lawsuits had also named the N.S.A. as a defendant, and in 2008 the Electronic Frontier Foundation refiled a case against the N.S.A. and a series of government officials, challenging the range of domestic surveillance and data collection activities. Several of the claims in those cases have been dismissed, but the First and Fourth Amendment ones remain.

The new filings came five days after another judge, Richard J. Leon of Federal District Court in the District of Columbia, ruled — in a case filed shortly after Mr. Snowden’s first reported disclosures — that the call-logging program in its current form probably violated the Fourth Amendment and called it “almost Orwellian.” The government is expected to appeal that decision.

Cruz Warns: 2014 NDAA Still Gives Obama ‘Indefinite Detention Without Due Process’ PowersAdan SalazarInfowars.comDecember 21, 2013

Says it “does not ensure our most basic rights as American citizens are protected” Texas Senator Ted Cruz was one of a handful of legislators who took a stand against the renewal of the National Defense Reauthorization Act this week by refusing to sign onto the legislation, which Cruz says still contains wording allowing President Obama to indefinitely detain U.S. citizens absent of due process.

“Just voted against NDAA because it does notensure our most basic rights as American citizensare protected,” Cruz tweeted Thursday evening.The legislation passed the Senate in an 84-15 votelate last Thursday night and “clears the Pentagon tospend $607 billion, including $527 billion in basefunding and $80 billion for America’s globaloperations,” reports Defense News.

According to Cruz, the bill contains manyprovisions he supports and even introduced,including provisions requiring “an independentinvestigation into reports of religious discriminationagainst troops sharing their faith,” and one insistingon “Improved assistance for widows of troops killed in combat.” However, the embattled senator, who earlier this year helped defeat an assault on gun rights and staged a 21-hour filibuster against the president’s namesake healthcare law, also stated in a press release that attempts to amend the bill for thebetterment of due process rights were blocked.

Cruz said in a Facebook post Thursday:

Today I voted against the National Defense Authorization Act. I am deeply concerned that Congress still has not prohibited President Obama’s ability to indefinitely detain U.S. citizens arrested on American soil without trial or due process.

The Constitution does not allow President Obama, or any President, to apprehend an American citizen, arrested on U.S. soil, and detain these citizens indefinitely without a trial.When I ran for office, I promised the people of Texas I would oppose any National DefenseAuthorization Act that did not explicitly prohibit the indefinite detention of U.S. citizens. Although this legislation does contain several positive provisions that I support, it does not ensure our most basic rights as American citizens are protected.

I hope that next year the Senate and the House can come together in a bipartisan way to recognizethe importance of our constitutional rights even in the face of ongoing terrorist threats and national security challenges. I look forward to working with my colleagues on the Senate Armed Services Committee toward this common goal. Last July, the U.S. Court of Appeals for the Second Circuit overturned a September 2012 decision made by U.S. District Court Judge Katherine B. Forrest which ruled that Section 1021 of the 2012 NDAA bill, the section authorizing the indefinite detention of U.S. citizens, was unconstitutional. However, in less than 24 hours the Obama administration appealed the ruling. Joe Wolverton, II, J.D., writing for The New American, says the 2014 version of the bill additionally contains “frightening” provisions strengthening government surveillance powers under the Patriot Act, and will also “establish a center to be known as the ‘Conflict Records Research Center,’” whose goal it would be to compile a “digital research database including translations and to facilitate research and analysis of records captured from countries, organizations, and individuals, now or once hostile to the United States.” “…[T]here is in the NDAA for 2014 a frightening fusion of the federal government’s constant surveillance of innocent Americans and the assistance it will give to justifying the indefinite detention of anyone labeled an enemy of the regime,” Wolverton writes.

The website Activist Post published the roll call vote results,

NSA program stopped no terror attacks, says White House panel member Michael IsikoffNBC NewsDecember 21, 2013

A member of the White House review panel on NSA surveillance said he was “absolutely” surprised when he discovered the agency’s lack of evidence that the bulk collection of telephone call records had thwarted any terrorist attacks. “It was, ‘Huh, hello? What are we doing here?’” said Geoffrey Stone, a University of Chicago law professor, in an interview with NBC News. “The results were very thin.”

While Stone said the mass collection of telephone call records was a “logical program” from the NSA’sperspective, one question the White House panel was seeking to answer was whether it had actually stopped “any [terror attacks] that might have been really big.”

“We found none,” said Stone.

Under the NSA program, first revealed by ex-contractor Edward Snowden, the agency collects in bulk the records of the time and duration of phone calls made by persons inside the United States.

Stone was one of five members of the White House review panel – and the only one without any intelligence community experience – that this week produced a sweeping report recommending that theNSA’s collection of phone call records be terminated to protect Americans’ privacy rights.

The panel made that recommendation after concluding that the program was “not essential in preventing attacks.”

“That was stunning. That was the ballgame,” said one congressional intelligence official, who asked not to be publicly identified. “It flies in the face of everything that they have tossed at us.”

Despite the panel’s conclusions, Stone strongly rejected the idea they justified Snowden’s actions in leaking the NSA documents about the phone collection. “Suppose someone decides we need gun

control and they go out and kill 15 kids and then a state enacts gun control?” Stone said, using an analogy he acknowledged was “somewhat inflammatory.” What Snowden did, Stone said, was put the country “at risk.”

“My emphatic view," he said, "is that a person who has access to classified information -- the revelationof which could damage national security -- should never take it upon himself to reveal that information.”

Stone added, however, that he would not necessarily reject granting an amnesty to Snowden in exchange for the return of all his documents, as was recently suggested by a top NSA official. “It’s a hostage situation,” said Stone. Deciding whether to negotiate with him to get all his documents back was a “pragmatic judgment. I see no principled reason not to do that.”

The conclusions of the panel’s reports were at direct odds with public statements by President Barack Obama and U.S. intelligence officials. “Lives have been saved,” Obama told reporters last June, referring to the bulk collection program and another program that intercepts communications overseas. “We know of at least 50 threats that have been averted because of this information.”

But in one little-noticed footnote in its report, the White House panel said the telephone records collection program – known as Section 215, based on the provision of the U.S. Patriot Act that provided the legal basis for it – had made “only a modest contribution to the nation’s security.” The report said that “there has been no instance in which NSA could say with confidence that the outcome [of a terror investigation] would have been any different” without the program.

The panel’s findings echoed that of U.S. Judge Richard Leon, who in a ruling this week found the bulk collection program to be unconstitutional. Leon said that government officials were unable to cite “a single instance in which analysis of the NSA’s bulk collection metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

Stone declined to comment on the accuracy of public statements by U.S. intelligence officials about thetelephone collection program, but said that when they referred to successes they seemed to be mixing the results of domestic metadata collection with the intelligence derived from the separate, and less controversial, NSA program, known as 702, to intercept communications overseas.

The comparison between 702 overseas interceptions and 215 bulk metadata collection was “night and day,” said Stone. “With 702, the record is very impressive. It’s no doubt the nation is safer and spared potential attacks because of 702. There was nothing like that for 215. We asked the question and they [the NSA] gave us the data. They were very straight about it.” He also said one reason the telephone records program is not effective is because, contrary to the claims of critics, it actually does not collect a record of every American’s phone call. Although the NSA does collect metadata from major telecommunications carriers such as Verizon and AT&T, there are many smaller carriers from which it collects nothing. Asked if the NSA was collecting the records of 75 percent of phone calls, an estimate that has been used in briefings to Congress , Stone said the real number was classified but “not anything close to that” and far lower. When panel members asked NSA officials why they didn’t expand the program to include smaller carriers, the answer they gave was “money,” Stone said. “They were setting financial priorities,” said Stone, and that was “really revealing” about how useful the bulk collection of telephone calls really was. An NSA spokeswoman declined to comment on any aspect of the panel’s report, saying the agency was deferring to the White House. Asked Wednesday about the surveillance panel’s conclusions about telephone record collection, White House press secretary Jay Carney said that “the president does still believe and knows that this program is an important piece of the overall efforts that we engage in to combat threats against the lives of American citizens and threatsto our overall national security.”

The Feds Declassify Bush-Era Surveillance Docs

Julian HattemThe HillDecember 22, 2013

Federal intelligence officials are declassifying eight documents about the origins of controversial surveillance systems created under former President George W. Bush. The Office of the Director of National Intelligence (ODNI) announced on Saturday that it had declassified the court documents dating from 2007 to this year, which the federal government had used to justify keeping the surveillance program secret.

Details about the data collectionunveiled by former NationalSecurity Agency (NSA) contractorEdward Snowden have raised alarmsabout the practice.The new disclosures are part of along-running lawsuit from a civilliberties group, the ElectronicFrontier Foundation. They wereordered earlier this year, after leaksfrom Snowden revealed the scope of the government’s activities.

Officials with the privacy group said that the release did not signify a major change in government policy.

"One day, hopefully soon, a court with a public, adversarial process will decide the legality of all of theNSA's surveillance programs," Electronic Frontier Foundation staff attorney Mark Rumold said in a statement on Saturday.

"We look forward to continuing that fight and bringing an end to the NSA's bulk collection of Americans' communications and records."

The surveillance efforts were launched beginning on Oct. 4, 2001, according to the ODNI, when Bush authorized some monitoring as part of the Terrorist Surveillance Program.

Bush allowed government officials to collect the contents of some international communications and bulk records about phone and Internet use, known as metadata. Metadata is general information about the communications, like numbers dialed and length of phone calls, but not the content of the communications themselves.

In 2006 and 2007, oversight of some of those activities was transferred to the secretive Foreign Intelligence Surveillance Court, which is tasked with providing a check on the executive branch’s surveillance efforts.

In one of the declassified documents from 2007, former Director of National Intelligence John Michael McConnell asserted that the lawsuit “puts at risk of disclosure information concerning… essential foreign intelligence-gathering activities utilized to meet the extremely serious threat of another terroristattack on the U.S. Homeland…”

He added, “because the very subject matter of this lawsuit concerns highly classified and critically important foreign intelligence activities, the risk is great that further litigation will lead to the disclosureof information harmful to U.S. national security and, accordingly, that this case should be dismissed.”

Last week, the White House released a 300-page list of recommendations to reform the NSA’s spying activities, developed by a special panel convened by President Obama.

Obama has said he will review the recommendations over the holidays and announce a path forward in January.

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