ACLU actions for disclosure of warrantless and overseas surveillance

Use of evidence obtained through Section 702 surveillance

ACLU, et al. v. DOJ, 13 Civ. 7347 (SDNY filed Oct. 17, 2013)This injunctive action seeks government compliance with the ACLU’s FOIA request, made on March 29, 2013, for the (i) identification of all current and past legal proceedings in which the Government intends to use information acquired or derived from warrantless surveillance under Sec. 702, (ii) the government’s policies and practices in regard to the provision of notice to “aggrieved persons” of the intent to use such information, and (iii) legal memoranda or opinions addressing or interpreting the notice requirements of 50 U.S.C. Sections 1881e(a) and 1806(a).

The government’s interpretation of the legal bounds on surveillance outside the United States under Executive Order 12,333

ACLU, et al. v. NSA, et. al., 13 Civ. 9198 (SDNY filed Dec. 30, 2013)

Executive Order 12,333 (“EO 12,333”), rather than FISA or oversight by the FISC, provides the legal basis for extraterritorial surveillance targeted at foreigners. This complaint under the Freedom of Information Act (“FOIA”) seeks the release of records pertaining to the government’s interpretation of its authority under EO 12,333, particularly, the procedures in place to prevent Americans’ communications from being swept up in the course of surveillance of foreigners. Manifesting its focus on protections for Americans, the Complaint states that, “Although EO 12,333 permits the government to target foreigners abroad for surveillance, recent revelations have confirmed that the government interprets that authority to permit sweeping monitoring of Americans’ international communications. How the government conducts this surveillance, and whether it appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance, are matters of great public significance and concern.” (Complt., para. 5).

This federal court action was filed after the ACLU made FOIA requests on May 23, 2013 to the CIA, Defense Intelligence Agency, NSA, FBI, the Office of Legal Counsel and the National Security Division of the Department of Justice, and the Department of State. On November 1 and November 8, 2013, the ACLU respectively filed administrative appeals, to which it received no response, of the CIA’s denial of its FOIA request and the constructive denial of the requests by the other agencies.

The legal documents in the case and the documents obtained from the government as a result of the litigation are available, respectively, at https://www.aclu.org/cases/executive-order-12333-foia-lawsuit and https://www.aclu.org/foia-collection/eo-12333-documents.

ACLU blogs on what the released documents have revealed are available at https://www.aclu.org/blog/new-documents-shed-light-one-nsas-most-powerful-tools, and https://www.aclu.org/blog/new-nsa-documents-shine-more-light-black-box-executive-order-12333

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