How the NSA Kept Us From Knowing About a Previous, Illegal Domestic Spy Program in 2006

by Will Potter on June 7, 2013

in Surveillance

nsa-domestic-spyingThe National Security Agency is engaged in an extensive monitoring of real-time and stored communications of Americans as part of an information-sharing program with Google, Facebook, and other major internet companies. Glenn Greenwald broke the story at The Guardian yesterday based on top-secret documents on a program called PRISM. If you haven’t read his story, or the Washington Post coverage, please do.

What we are seeing now–especially news that NSA is collecting Verizon customer information– is strikingly similar to the scandal over illegal spying by the Bush administration. But as Greenwald shows, these operations have not only continued under the Obama administration, they have expanded.

In light of that, I wanted to highlight a little-known story of how the NSA narrowly averted a similar scandal involving illegal spying on protest groups in 2006.

At that time, members of the Earth Liberation Front were going to trial, as terrorists, for their role in a series of arsons. The threat of a life sentence was enough to convince them to snitch on their friends. A few of the defendants refused, though, and were facing even more prison time for not cooperating.

Then the attorneys for these non-cooperating defendants had a brilliant idea. On March 24, 2006, they served prosecutors with a request for all materials obtained through the Foreign Intelligence Surveillance Act (FISA) or the NSA. The Bush administration NSA scandal was international news. And if the NSA was illegally spying on environmentalists, it could have all the cases thrown out of court.

Here’s an excerpt from Green Is the New Red about what happened next:

On August 22nd, after months of government stalling, Judge Ann Aiken holds a hearing on the NSA motion. Prosecutors argue that they have turned over all of the discovery materials in the case, including seventy-two CDs and 28,000 pages of documents. They say no information “in the possession” of the prosecution was obtained illegally. If they ever received materials obtained through warrantless surveillance, they say they had no way of knowing and no security clearance to find out. Attorney Stephen Peifer tells Aiken, “I’ve been working on this case for ten years, and the term FISA has never come up.”

“To you,” Aiken replies. In another case, assistant U.S. attorneys were unaware of NSA spying until the government accidentally disclosed it to defense attorneys for the Al-Haramain Islamic Foundation. Information obtained through warrantless surveillance could have been filtered into the Operation Backfire investigation unbeknownst to prosecutors.

There is only one way to know for sure. In a major victory for the defense, Aiken rules that the government must disclose whether the NSA spied on the defendants.

The ruling does not bode well for the prosecution. A group of constitutional scholars, law professors and former government officials has sent a letter to Congress saying that, although not all details of the spying program have been revealed, it “appears on its face to violate existing law.” The Congressional Research Service, the nonpartisan investigative arm of Congress, has issued a report with similar conclusions. In at least five other lawsuits, courts have forced the government to disclose whether NSA surveillance played any role in the case; on the morning McGowan’s attorney filed the motion, another court ruled that NSA surveillance violated the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act. “It was never the intent of the Framers to give the president such unfettered control,” Judge Anna Diggs Taylor wrote in ACLU v. NSA, “particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.” If NSA surveillance is disclosed in this case, it will likely be ruled unconstitutional. And if it is ruled unconstitutional, then all of the Operation Backfire cases could be dismissed.

But the government could lose more than these cases. The Bush administration has fought hard to keep its spy programs secret. When the Justice Department’s Office of Professional Responsibility began examining the role of government lawyers in the program, President Bush denied security clearances to investigators and shut them down. In an interview with the El Paso Times, National Intelligence Director Mike McConnell stated that to even question government spying threatens American lives. “So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?,” the interviewer said, repeating McConnell’s statement. “That’s what I mean,” he replied. “Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing.”

If prosecutors hand over new information about the Terrorist Surveillance Program, it could prove suspicions that the government’s spying has extended far beyond Al Qaeda. It could lead to Congressional hearings, much like ones that dissolved SHAMROCK, MINARET, and COINTELPRO. Exposing NSA spying on the animal rights and environmental movements could dismantle the entire domestic spying apparatus, and the Bush administration along with it.

Two months later, Daniel McGowan’s attorney, Amanda Lee, quietly withdraws the NSA motion. Neither she nor Assistant U.S. Attorney Kirk Engdall will offer an explanation other than that it is “by reason of agreement with the government.” A week later, on November 9th, Daniel McGowan, Jonathan Paul, Nathan Block and Joyanna Zacher change their pleas to guilty. The pleas are part of an unusual non-cooperating plea agreement in which they will admit their guilt but not name names.

Neither the government nor defense attorneys will confirm a direct relationship between the withdrawal of the motion and the guilty pleas. But it is clear that both parties had a remarkable change of heart on positions they previously refused to compromise.

From the start prosecutors had said there were two options: snitch and receive a reduced sentence, or go to trial and risk life in prison. McGowan and his attorneys had organized the “non-cooperating defendants” and pushed for a special plea deal, but prosecutors said it was not open for discussion. While this agreement impedes investigation into other ELF crimes, the government avoids a national security investigation.

The defendants had been just as steadfast, saying they would never accept a plea deal. Had they maintained this position, and had the NSA motion revealed illegal surveillance, their cases might have been thrown out. However, those are significant variables with so much at stake. This way, the defendants relinquish any hope of absolution, but they secure reduced sentences.

The defendants’ decision comes with an additional, political sacrifice. For McGowan, who always seems to be thinking about the bigger activist picture, the deal means forfeiting a rare opportunity to expose systemic government corruption. On some activist websites and message boards there are comments questioning the decision to cede the upper hand in a national political scandal. The anonymous individuals leaving comments, however, are not facing life in prison.

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