NYT: Redactions in U.S. Memo Leave Doubts on Data Surveillance Program

http://www.nytimes.com/2014/09/07/us/redactions-in-us-memo-leave-doubts-on-data-surveillance-program.html

SEPT. 6, 2014

Redactions in U.S. Memo Leave Doubts on Data Surveillance Program

By CHARLIE SAVAGE

WASHINGTON -- The Justice Department has released a newly declassified version [1] of a May 2004 legal memo approving the National Security Agency's Stellarwind program, a set of warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001. But questions about the program remain.

A more heavily redacted version of the memo had been released [2] in 2011 as part of Freedom of Information Act lawsuits by the American Civil Liberties Union and the Electronic Privacy Information Center. The new version includes previously censored references to the existence of the data collection related to Americans' phone calls and emails.

The Obama administration voluntarily reprocessed the memo from Jack Goldsmith, the head of the Justice Department's Office of Legal Counsel, in light of the fact that it had declassified the existence of the bulk phone and email data programs last year after leaks by Edward J. Snowden, a former N.S.A. contractor.

The fuller release adds to the public record of an important historical episode. However, the government continued to redact crucial portions of the memo that would answer a primary remaining question about the history of Stellarwind: What prompted the Justice Department to conclude in early 2004 that one aspect of the program, which collected records about Americans' emails in bulk, was illegal -- even though it permitted other aspects, like warrantless wiretapping and the bulk collection of Americans' phone records, to continue?

"They have continued to keep redacted something very significant," said Jameel Jaffer, a lawyer with the A.C.L.U.

The Justice Department's conclusion that the email metadata program was illegal led to a March 2004 confrontation between White House and department officials in the hospital room of Attorney General John Ashcroft, after which nearly the entire top leadership of the department threatened to resign, prompting President Bush to agree to changes.

On May 6, 2004, Mr. Goldsmith, who had taken over as the head of the Office of Legal Counsel the previous year and had reached the conclusion that the Internet data program was illegal, completed a 108-page memo that fully reassessed all aspects of the program.

Mr. Goldsmith concluded that the president's wartime powers both as commander in chief and under Congress's authorization to use military force against Al Qaeda were sufficient to overcome requirements in the Foreign Intelligence Surveillance Act, or FISA, for court approval for most of the program.

"The president has inherent constitutional authority as commander in chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States," he wrote. "Congress does not have the power to restrict that authority."

But what Mr. Goldsmith said about the program that collected email data in bulk is less clear; two months later, in July 2004, the Justice Department would obtain a court order for that program from the Foreign Intelligence Surveillance Court, which blessed it as authorized by FISA.

That legal theory would be extended in 2006 to the program that collects Americans' phone call records in bulk.

Years later, parts of what had happened began to become public, starting with a December 2005 article in The New York Times that revealed the warrantless wiretapping portion of the program. The bulk phone and email metadata programs, however, remained secret until 2013, when they came to light in leaks by Mr. Snowden.

While the basic existence of the March 2004 crisis has been known, it was not until Mr. Snowden's leaks that it became clear that it pertained only to the Internet metadata program. [3] However, it has remained murky what Mr. Goldsmith objected to in light of his willingness to bless the rest of Stellarwind based on a sweeping theory of presidential wartime powers.

Those portions of the memo remain redacted in the newly released version.

[1] https://www.aclu.org/sites/default/files/assets/olc_stellar_wind_memo_-_may_2004.pdf

[2] https://www.aclu.org/files/assets/NSA_Wiretapping_OLC_Memo_May_6_2004_Goldsmith.pdf

[3] http://www.nytimes.com/2013/06/28/us/nsa-report-says-internet-metadata-were-focus-of-visit-to-ashcroft.html