Disclosures of the NSA Telephony Metadata Program

The DOJ’s refusal to comply with Congressional disclosure requests

On October 28, 2013, the Director of National Intelligence (“DNI”) released identical letters that the Department of Justice (“DOJ”) had sent to Chairman of the House Judiciary Committee John Conyers and members of the Committee Bobby Scott and Jerrold Nadler on December 17, 2009, denying their request of October 5, 2009 for “additional public information on use of Section 215 of the USA Patriot Act.” Assistant Attorney General Ronald Weich stated that, “Public discussion of the highly classified uses of Section 215 authority, including the bulk collection program conducted thereunder, is problematic because it would expose sensitive sources and methods involved in this critical intelligence collection activity. Because we are concerned that public disclosure would cause serious damage to national security, we cannot disclose publicly that Section 215 is used for bulk collection of telephony metadata.”

By contrast, the DOJ agreed with the Congressmen that in order to decide whether to reauthorize expiring provisions of the Patriot Act, members of Congress should have access to information about the telephony metadata program as well as a similar program conducted under the pen/trap provisions of FISA. The letter states that DOJ had worked with the Intelligence Community to prepare a document for all members of Congress describing the two programs, their legal basis and their importance to national security. The document, however, is not included with the letters.

Disclosures in the wake of the Snowden revelations

The DOJ’s refusal to disclose the telephony metadata program to the public came to light as part of the DNI’s declassification and release of troves of redacted documents on September 10, October 28, and November 18, 2013 and January 17, 2014 pertaining to the government’s bulk collection and use of telephony metadata under Section 215 of the Patriot Act, 50 U.S.C. Sec. 1861. The released documents included FISC Opinions and Orders, pleadings and other submissions by the government to the FISC, internal NSA documents, and government correspondence with various Congressional Committees. DNI’s Press Releases of September 10, October 28, and November 18, 2013 and January 17, 2014.

The Press Releases all stated that the release of the documents reflected “the Executive Branch’s … commitment” to providing the public with information about intelligence collection programs, and did not mention the litigation that the ACLU and EFF had brought for the release of the documents.

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