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ACLU Says Recent NSA Spying Allegations Bolster its Lawsuit Against FISA Bill

By Ryan Singel, Kevin Poulsen, Sarah Lai Stirland, Kim Zetter, and David Kravets

The American Civil Liberties Union says that recent allegations that the National Security Agency eavesdropped on communications of U.S. aid workers and journalists based in the Middle East will help bolster a lawsuit challenging the constitutionality of amendments to the Foreign Intelligence Surveillance Act, which were passed earlier this year.

Two Arabic linguists who worked at an NSA listening post at Ft. Gordon, Georgia, have alleged that the NSA systematically targeted U.S. aid workers and journalists in the Middle East for eavesdropping. The linguists say the calls were personal in nature and not terrorist- or military-related.

Adrienne Kinne, a former Army reservist and Arabic linguist at Ft. Gordon, told Threat Level last year that her group intercepted satellite communications of businessmen, aid workers and journalists in the Middle East and that they had received a waiver that allowed them to listen to and report on calls involving Americans and U.S. allies, including calls they made to other Americans in the U.S. Kinne's account appears in a new book published this week by NSA expert James Bamford, called Shadow Factory, and were the focus of an ABC news report last week.

Under guidelines of the United States Signals Intelligence Directive 18, also known as USSID 18, the NSA must not target U.S. persons for interception except under special circumstances and, if such communications are intercepted incidentally, NSA monitors must stop listening to the call once they realize the party is a U.S. person and must not keep a recording of the call or disseminate a report on its contents.

Kinne and David Murfee Faulk, an Arabic linguist with the Navy who was also at Ft. Gordon, said they'd been told that USSID 18 didn't apply and that they were allowed to listen to conversations of U.S. persons and report on them. The linguists said they monitored conversations among callers in the Middle East and among U.S. persons based in the Middle East and their family members back home.

Melissa Goodman, staff attorney in the ACLU's National Security Program, said the allegations confirmed that despite the government's repeated assertions that after September 11 it targeted only suspected terrorists for surveillance, the NSA was targeting relief workers and journalists, including U.S. persons, without cause.

Goodman added that the allegations underscore the need for transparency and proper oversight of surveillance programs to ensure that abuses don't occur, which is the basis for a lawsuit her organization filed earlier this year.

"Whenever you have a law or program that gives the NSA the power to conduct this kind of surveillance where there is not sufficient checks and balances, the targeting of innocent Americans is always a possibility," she said. "If these allegations are true, it suggests that whatever safeguards were in place were ineffective or were being ignored. There needs to be oversight to ensure that the NSA isn't running rampant and engaging in mass surveillance of Americans."

The ACLU filed a suit in the Southern District of New York in July challenging the FISA Amendments Act of 2008, which legalized secret warrantless wiretapping that the government had been conducting since 2001 and granted the President and the NSA broader surveillance powers.

The ACLU is challenging the law on constitutional grounds, saying it violates the Fourth Amendment by allowing the government to conduct untargeted, dragnet surveillance regardless of whether the person or entity being targeted is suspected of wrongdoing. The ACLU says the new law also removes effective oversight by not requiring the government to tell a court who it's targeting for surveillance. (The Electronic Frontier Foundation filed another suit challenging provisions in the Act that granted immunity to telecommunications companies that cooperated with the NSA in conducting warrantless surveillance.).

The ACLU filed its suit on behalf of a coalition of human rights groups, journalists and attorneys who regularly communicate with sources and clients in the Middle East.

The ACLU unsuccessfully sued the NSA in another case filed in 2006.

In January 2006, shortly after the New York Times broke the story about the NSA's warrantless wiretapping and the government's Terrorist Surveillance Program, the ACLU sued the NSAon grounds that the surveillance violated the First and Fourth Amendments. Eight other plaintiffs joined the suit to stop the surveillance on grounds that it violated their free speech and privacy rights. Those plaintiffs included the National Association of Criminal Defense Lawyers, Greenpeace, the Council on American-Islamic Relations, writer Christopher Hitchens (Hitchens is a contributing editor for Wired's sister publication Vanity Fair), and James Bamford.

Although a federal appeals court judge declared that the NSA surveillance program was illegal, the appeals court panel ruled in July 2007 that the plaintiffs didn't have standing to sue the NSA because they couldn't prove they'd been spied on by the agency. The ACLU petitioned the Supreme Court to hear the case, but the Court declined.

Senate intelligence committee chair Jay Rockefeller (D-W.Va.) has ordered his staff to open a probe into the surveillance abuses alleged by the two Arabic linguists, Kinne and Faulk. The Senate Judiciary Committee has also announced it wanted a full investigation of the allegations. The Senate Judiciary Committee has known about Kinne's allegations for more than a year.

Last year, Kinne provided an account of her allegations to the staff of Senator Patrick Leahy (D-Vt.), which passed them to the Senate Judiciary Committee, of which Leahy is chairman. The Judiciary Committee in turn passed the allegations to the Department of Defense Inspector General's office, which passed them to the Inspector General of the NSA. Kinne was never interviewed by the inspector general offices about her allegations.

Last week the NSA released a statement saying that ?Some of these allegations have been investigated and found to be unsubstantiated; others are in the investigation process.?

House Intelligence Committee chair Silvestre Reyes (D-Tx.) has also sent an inquiry to the NSA asking about the allegations. The NSA had contacted Reyes' office prior to the publication of ABC's story last Thursday to let him know that the story would be coming out.

See also:

• Inside Operation Highlander: the NSA's Wiretapping of Americans Abroad

Full post as published by Threat Level on October 14, 2008 (boomark / email).