December NSA Mini-Trove: Clapper and Fleisch on Secrecy Claims Post-Snowden

At the heart of this month's NSA Mini-Trove are the government's most recent explanations of its now narrower claims of secrecy in two long-pending lawsuits---Jewel v. NSA and Shubert v. Obama---the narrowing occasioned by, naturally, Edward Snowden's disclosures.

Such is the gist of two declarations regarding secrecy privileges in the cases filed on December 20, 2013, by Director of National Intelligence (“DNI”) James Clapper and Acting Deputy Director of the NSA Frances Fleisch, respectively. The submissions supplanted all prior privilege assertions in those cases by the government.

In light of Snowden’s leaks and the government’s subsequent disclosures, the government is no longer asserting the state secrets privilege or statutory privilege under the National Security Act for the existence of NSA intelligence activities under sections 402, 501, or 702 of FISA. However, the government continues to assert those privileges concerning the scope and operational details of those activities. Unlike the previous declarations, the Clapper and Fleisch declarations are unclassified and indicate that additional classified declarations have been filed for in camera review by the court.

The declarations continue to assert privilege over four specific categories of information. The first, only appearing in the Clapper declaration, is information concerning the specific nature of the threat posed by al-Qaida and affiliated organizations. After summarizing in brief the litany of terrorist organizations threatening American interests at home and abroad, DNI Clapper asserts a claim of privilege over this more detailed threat information

[B]ecause [the information's release] would disclose to our adversaries what we know of their plan and how we may be obtaining information about them. Such disclosures would lead our adversaries not only to alter their plans, but also to implement greater security for their communications, thereby increasing the risk of non-detection. In addition, disclosure of threat information might reveal human resources for the United States, compromise those sources, and put their or their families’ lives in danger.

Second, both statements claim privilege for information that would confirm or deny whether particular individuals have been subject to NSA surveillance. According to the declarants, revealing that a person is the target of surveillance would compromise that collection stream, while admitting that a person is not a target would indicate secure lines by which hostile actors could communicate. There are also obvious problems if the government were to assure non-targets that they have not been subject to surveillance, but later refused to confirm or deny to actual targets whether they have been subject to surveillance activities---the fact of the refusal to confirm or deny would in fact confirm that the individual has been targeted.

Third, the Clapper and Fleisch declarations assert privilege over facts concerning the scope and operational details of the NSA’s intelligence activities that would be necessary to rebut plaintiffs’ claim that the NSA is conducting a content “dragnet” program. These details include the selection of targets under the Terrorist Surveillance Program (“TSP”) briefly conducted during the Bush Administration, the specific sources and methods used under the TSP to intercept communications, the nature and identity of targets under the TSP, and details of the metadata and Section 702 collection programs. According to the Fleisch declaration,

The disclosure of whether and to what extent the NSA utilizes certain intelligence sources and methods would reveal to foreign adversaries the NSA’s capabilities, or lack thereof, enabling them to either evade particular channels of communications that are being monitored, or exploit channels of communication that are not subject to NSA activities, in either case risking exceptionally grave damage to national security.

Finally, both declarations briefly address privilege claims for information that would confirm or deny whether telecommunications carriers AT&T and Verizon assisted the NSA with intelligence activities. Acknowledging that one of the FISA Court orders officially disclosed by the government confirms Verizon’s participation from April 25 to July 19, 2013, the declarations note that no other participating carriers have been confirmed, nor has the government confirmed Verizon’s participation beyond the range of the disclosed order.