A FOIA lawsuit that brought to light large amounts of information about post-9/11 surveillance may be ending
Today, Judge Analisa Torres of the Southern District of New York issued a ruling in a Freedom of Information Act case brought by The New York Times and me. The case centered on various Justice Department inspector general reports about post-9/11 surveillance. The government had already made public a sizable amount of information due to this case, but we were fighting over whether some of the material it redacted should be uncovered. Judge Torres ruled against us. This could be the end of the case, or we might appeal. Either way, it seems like a good moment to hail the significant amounts of information this lawsuit brought into public light. Below I discuss in some detail what the documents were and link to them as well as some stories that they generated.
But first, I want to thank the NYT’s lawyer, David McCraw, and two NYT First Amendment Fellows — Victoria Baranetsky (2014) and Jeremy Kutner (2015) — for their hard work on the litigation. And I thank the government officials who chose to put out the significant portions of these documents that the executive branch decided to acquiesce to making public rather than fighting us over, even though we disagree that they were justified in redacting certain things.
Background: After Edward Snowden’s leaks, the government declassified many facts about surveillance and communications metadata collection/analysis — like, for instance, the existence of the Patriot Act bulk phone records collection program that was the subject of the first of his leaks that Glenn Greenwald and The Guardian chose to publish. The government did this because Snowden had disclosed a number of its capabilities, and it wanted to explain and defend itself, including discussing internal rules and oversight over those capabilities.
Seeking to leverage that wave of declassification, I filed a FOIA request — and later, with the NYT, this lawsuit — seeking inspector general reports on those topics. We sought disclosure of some reports that were entirely classified, as well as reprocessing and more fulsome release of reports that had previously been made public but in heavily redacted form.
The most important of these reports was a massive investigation by six agencies’ inspectors general into the post-9/11 Stellarwind warrantless wiretapping and bulk metadata collection program. The creation of this report had been mandated by Congress as part of the FISA Amendments Act of 2008, and it was kept entirely secret when completed in 2009. The famous “NSA IG report” leaked by Snowden and originally published by The Guardian (though the Washington Post had previously written about bits of it without publishing it) was an early draft of the NSA’s contribution to this much larger Stellarwind report, which DOJ oversaw. (Here’s a story about a partial revelation from that leak that I had the honor of co-writing with Jim Risen, who along with Eric Lichtblau broke the original warrantless wiretapping story.) But the Justice Department’s chapter turned out to contain many, many additional revelations about the history of that program.
Other reports covered the FBI’s involvement with the FISA Amendments Act warrantless wiretapping programs that grew out of Stellarwind, and its collection of phone data and other types of records using National Security Letters, “exigent” letters, and Section 215 of the Patriot Act.
The government produced these documents in large tranches over time, and in several cases went back and re-issued them with fewer redactions. Here are some news articles based on these documents:
- “George W. Bush Made Retroactive N.S.A. ‘Fix’ After Hospital Room Showdown,” September 21, 2015
- “Declassified Report Shows Doubts About Value of N.S.A.’s Warrantless Spying,” April 25, 2015
- “F.B.I. Is Broadening Surveillance Role, Report Shows,” January 12, 2015
In addition, significant details in my book Power Wars — especially “Chapter 4: Stellarwind (Surveillance 1928-2009)” and, to a lesser extent, “Chapter 11: Institutionalized (Surveillance 2009-2015)” — drew on the information these documents brought to light.
Here’s the documents:
- DOJ IG Report on FBI Activities under Section 215 of the Patriot Act (March 2007)
- DOJ IG Report on FBI Activities under Section 215 of the Patriot Act (March 2008)
- DOJ IG Report on FBI Activities under Section 215 of the Patriot Act – December 2014 released version with highlights marked
- DOJ IG Report on FBI’s Use of National Security Letters (March 2007)
- DOJ IG Report on FBI’s Use of National Security Letters (March 2008)
- October 2014 released version with highlights marked
- DOJ IG Report on FBI’s Use of Exigent Letters and Other Informal Requests for Telephone Records (January 2010)
- November 2014 released version with highlights marked
- DOJ IG Report on FBI Activities under Section 702 of the FISA Amendments Act (September 2012)
- Joint IG report on Stellarwind (July 2009):
Not bad for one lawsuit.