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earmark Ronald is where the C is a staff attorney with the Electronic Frontier
Foundation
EF F .org mark welcome back to the program five banks ravenous arm
the effi- read this story the year while was
yesterday before Wednesday that you guys have been fighting for a couple years
almost two years
to Bob to it to get the federal government
to well actually let me let you tell the story said to me telling a story what
tell me about this reason court case sure so
on Wednesday the the the government finally released after what he said
some somewhat prolonged court battle Asia
opinion at the FIS the the Foreign Intelligence Surveillance Court that
held that summer the
surveillance the NSA was doing was unconstitutional and had violated
the by the men in fact the very broad and permissive laws that the NSA
uses to conduct the lottery surveillance
I but the
the story behind the release of the opinion goes back
over a year ago back through the summer
up 2012 when the fis Amendment Act was was the
up for reauthorization um senator wyden
pressed the Director of National Intelligence to declassify the fact
that this court opinion existed mister clap for that honor widen it was it was
secret from the public that a court had declared this
surveillance be unconstitutional so was that
mister clapper that time yes it was clever
okay so so ron wyden is asking clapper was there
a court decision on this are you guys going violating court orders that
basically what he was
well so is senator wyden was briefed on it senator wyden new
what senator wyden wanted to do was make the public aware that this
that this court order existed so he wrote a a classified letter
to the director national Intelligencer with so evident seen that letter
um that that I assume you know pressed
the D&I to to make public the fact that this opinion existed
so that so that you know the public could use that information
in intelligently I am
intelligently debating whether or not the five amendments actually be
reauthorized
strike and that and that court decision in plain English said
in plain English its said it that
some I love the surveillance that the NSA was conducting
violated the Constitution and violated
the fis amendment did it did it order the the NSA therefore to stop it
he gave the NSA the option it gave the NSA
the option other immediately remedying the
the problems that the court had identified right we're stopping the
program
right so sorta like you know somebody's gets arrested in the active shoplifting
and the police officer says I you can set that I am back down sir
I and I'll let you go and we'll pretend this never happened that is that that
kind of thing
I G yes my so defense from reading the opinion is that the court was frustrated
the court was was frustrated that the NSA had been representing one thing to
it
for the past three years when in reality the NSA was doing something entirely
different
it seems like the court um
the court had been misled in the past and I was upset about it
on effect this is the from the opinion is
the court wanted to take advantage of the fact that
the NSA was forthcoming this one time and
you know pressing them to to make changes to their program
but there there is there is certainly a a palpable frustration and right so this
was this was 2011
yep and so the NSA had been spying on us in a way that was illegal
unconstitutional since
was in from 2008 read too that okay from 2008 to 2011
and so that would be the end the Bush administration right up until 2011 and
the fis according to know about it
and they found out about it they said stop and please stop
and and Ron Wyden knew that this is a and this all happened
in in secret behind closed doors nobody in america knew about this we didn't
have a security clearance and
the specific information senator wyden did know about it and so he gets great
Klapper in public and says to him
was there a court decision like this and Greg clapper says what
well now it didn't happen like that okay like I was saying
senator wyden send a classified letter up to
clapper to to push him to declassify the fact that this
that this a Iranian existed and eventually
than D&I relented and made public
the fact that it is okay and then so
the basis of your lawsuit was what the basis of our largest so after
D&I clad declassified the fact that the opinion existed we put in a foil request
for the for the opinion the Freedom of Information Act
every esta Freedom of Information Act for request
I it 1 I've one of the
kinda basic tenets of classification is that you can't classified information
to conceal a legal conduct
so we were pretty confident that the government would have to turn over
I parts for the opinion to a silly smart since large sensor conduct had been
classified as illegal by that any
wrecked Brad exactly you know it was an opinion that
specifically dealt with unconstitutional and illegal
behavior so we're confident that would be a part of it
we put in the request the government never responded so we we filed suit 30
days later
um during you know probably the next
four months while the fis Amendment Act reauthorization
debate was going on the government continue to drag their heels they
continued to refuse to
disclose the opinion even though at that moment
you know that's when the opinion would have been most crucial to the debate on
whether or not the law should be reauthorized
sell really what they were trying to do was not so much prevent you from knowing
but prevent you from in for mean
the the members of congress who didn't have the security clearance at the level
of ron wyden
frat but who were debating whether or not to reauthorize this thing
to prevent them from knowing that this thing that they wanted reauthorize it
already been declared illegal
sharp so the both informing Congress and informing the general public red
I work was pretty startling is
a so the 5mm in fact ended up being reauthorized on
December 30 s 14 or five days later I think January
fourth the 2013
the government finally released records to us and they were almost entirely
redacted
mmm so that the whole act out redacted fancy word for blacked-out you couldn't
really nothing
ok the the entire time they were refusing to give us information so we
could use it
a to contribute to the debate on the debate was over they felt
it was that the coast was clear they could release these documents and
they typically really is nothing to us so
from that point we we pursued we continue the litigation and the
government came back
and their primary justification for withholding
the opinion was that the Foreign Intelligence Surveillance Court itself
was preventing them from disclosing it
and so we said you know that's a crazy that the crazy argument we're gonna go
ask toughest
and the fiske came back and i actually I came on your show previously to talk
about
this aspect right is the Fisker rejected the government's argument
and said no we're not providing you with you executive branch
I'll thats the only the only government body you
obstructing that information amazing made public
mark we have a little less than a minute left so where do we stand now and what
can people do and what what are you guys doing over it he FF .org
well you know we're continuing the fight in the courts and the
in in the court of public opinion
to try and a rain in
the the NSA spying we're trying we're pushing very hard for
for congressional investigation I there really aren't looks at the full scope of
the anna says
the spying programs her and we know new church commission
yeah exactly exactly yeah and you
you have a champion for that anybody in congress the you know it
ron wyden has been he's been been a leading voice from if the entire time we
had with love to see him take part in it and
to both both both sides of Congress are really starting
the to agree that something could be done
good on you park from all the house was being
electronic this afternoon for the Electronic Frontier Foundation
BFF dad or get over there check it out read the stories
it awesome support the weight mark thanks for being with us today
thanks so much sam