Glenn Greenwald was on ABC This Week again talking about NSA surveillance and pushing back on the notion that there is 'robust oversight' of the NSA's activities. He said that members of Congress are being blocked from getting information about the surveillance activities and are forced to get their information from the media, like every other American (which wouldn't be available at all if not for Edward Snowden).
He referred to a court opinion from 2011, an 86 page opinion from the FISA court that ruled
spying on American citizens is 'both' unconstitutional, in violation of the Fourth Amendment and illegal - a violation of the statute. This opinion remains a complete secret. The FISA court has said it has no objection to it being released but the Obama Administration insists it has to be secret. Both members of Congress and others have been requesting simply to read that court opinion. The Intelligence Committee that is led in the House by Mike Rogers and Dutch Ruppersberger that represents the NSA district and receives all kinds of cash from the defense and intelligence industries, have refused to allow them access. That's extraordinary, ruling that our government violated the Constitution and the law, not only can't we read it but neither can our representatives in Congress.
Incredibly, the moderator Martha Raddatz says nothing about this, instead follows this up with "Edward Snowden, will he ever come back to America"?
Mother Jones published a long article about this secret 86 page court opinion in June when the revelations first started to come out.
In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.
For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen a secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.
The Electronic Freedom Foundation filed a FOIA request but was told it couldn't get the opinion because it was secret. It pushed ahead with a lawsuit and was told
a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.
So it's a Kafka-esque Catch 22 that they (we) can't get the secret opinion because it's secret.
Currently, given the conflicting positions of the Justice Department and the FISA court, Sobel notes, "there is no court you can go to to challenge the secrecy" protecting an opinion noting that the government acted unconstitutionally.
This should give pause to those who assure themselves of 'strict oversight', such as that offered when we hear about this latest revelation that the FBI is pressuring internet providers to install 'port readers
' (provided by the FBI) to collect internet activity in real time.
The U.S. government is quietly pressuring telecommunications providers to install eavesdropping technology deep inside companies' internal networks to facilitate surveillance efforts.
FBI officials have been sparring with carriers, a process that has on occasion included threats of contempt of court, in a bid to deploy government-provided software capable of intercepting and analyzing entire communications streams. The FBI's legal position during these discussions is that the software's real-time interception of metadata is authorized under the Patriot Act.
Attempts by the FBI to install what it internally refers to as "port reader" software, which have not been previously disclosed, were described to CNET in interviews over the last few weeks. One former government official said the software used to be known internally as the "harvesting program."
As more and more information drips out, it seems that what we have heard to date regarding NSA surveillance of Americans is just the tip of the iceberg.
11:50 AM PT: Glenn Greenwald has an article in today's Guardian discussing at length the difficulty Congress members are having in obtaining information about the NSA's surveillance activities.