NSA Operations Remain Opaque to Investigators

A new report about domestic surveillance by the NSA comes months after it was revealed that the agency has had a warrant-less eavesdropping program for international calls reaching into the U.S. Despite the controversy surrounding the program, the NSA has managed to resist efforts — even from the Justice Department — to probe its actions.

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RENEE MONTANGE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

JOHN YDSTIE, host:

And I'm John Ydstie. The government today is expected to urge federal courts to dismiss two lawsuits related to the war on terror saying they could expose government secrets. The administration says there's solid legal precedent for this tactic. But civil liberties groups feel these cases show that protecting secrecy has become a legal trump card that's used to avoid public scrutiny of controversial programs. NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

On December 31, 2003, Kahled El-Masri boarded a bus in his adopted country of Germany headed for Macedonia. It would be a long time before he made it home again. He says local authorities turned him over to the CIA. He was then transported to Afghanistan, he says, beaten and held without charge for five months. He protested his innocence to no avail. Then he was released as suddenly has he had been detained. Ben Wizner is an attorney for the ACLU.

Mr. BEN WIZNER (Attorney, ACLU): This was apparently a case of mistaken identity. And when the CIA realized that it was holding the wrong person, rather than release him with an apology, they blindfolded him, flew him back to Europe and left him on a hilltop in Albania to find his way back.

ABRAMSON: The ACLU says El-Masri was a victim of a CIA tactic known as extraordinary rendition. Now the organization is representing El-Masri in a lawsuit. He wants an apology and money damages. But if El-Masri thought the government played rough before, he was in for a surprise. Ben Wizner says the administration is asking the judge to block the case because it might reveal state secrets.

Mr. Wizner: Effectively, what the CIA is arguing is that discussion in a courtroom of facts that have already in been on the front page of The Washington Post will threaten national security. And I hope that judge looks with some skepticism at the CIA's claim.

ABRAMSON: The administration only has to convince the judge that sensitive information is at risk. Plaintiffs can't see the information because it's, well, secret. The government won't discuss individual cases, but Justice Department spokesperson Tasia Scolinos says the privilege is used sparingly and only after careful review.

Ms. TASIA SCOLINOS (Spokesperson, Justice Department): And if the agency head determines that disclosure of that information would cause harm to the country, the Justice Department would review the proposed state secrets privilege claim and determine whether its assertion is appropriate in the litigation.

ABRAMSON: Plaintiffs find cold comfort in that procedure. The Electronic Frontier Foundation has sued AT&T, saying that the phone giant has been collaborating with the National Security Agency to eavesdrop on the communications of millions of innocent Americans. The case makes some of the same charges contained in an USA Today report released yesterday which has renewed controversy over NSA domestic surveillance. But the government intends to assert the state secrets privilege in this case too and that could kill the suit. Electronic Frontier Foundation attorney Kevin Bankston says the government's argument could stifle scrutiny of NSA's surveillance.

Mr. KEVIN BANKSTON (Attorney, Electronic Frontier Foundation): The executive could, unchecked by the courts, conduct widespread surveillance of the population, and no one could ever litigate it because it might reveal state secrets.

ABRAMSON: Like El-Masri's attorneys, Kevin Bankston cannot see the secrets the government says it wants to protect. Paradoxically, his court case rests on the idea that his group has in fact uncovered those secrets and wants the judge to stop a secret program. Bankston hopes to persuade the judge that even if the privilege is granted, the case should go ahead.

Mr. BANKSTON: And that we can prove our case and it shouldn't be dismissed without getting into state secrets.

ABRAMSON: In recent years the administration has used this legal doctrine to protect patents and to stop a suit by a fired by an FBI translator, and generally it works. Law Professor Scott Silliman of Duke University says the privilege rests on a 50-year-old Supreme Court decision, one the judges are reluctant to question.

Professor SCOTT SILLIMAN (Professor, Duke University): The government comes with a very large hammer. And it's saying to the judge, you cannot risk allowing this information to be disclosed because even though you may not understand it, there is grave damage that will be caused to the national security.

ABRAMSON: Larry Abramson, NPR News, Washington.

RENEE MONTAGE, host:

New allegations that the NSA is compiling a database on millions of domestic telephone calls follows reports that the NSA had listened in on international calls that reached into the U.S. without obtaining court warrants. That prompted calls for an investigation. NPR's Ari Shapiro reports on what happened when the Justice Department tried to investigate.

ARI SHAPIRO reporting:

The US Department of Justice has shut down its investigation of warrantless eavesdropping. It says it had to because investigators were denied the security clearance they needed. The investigators were from the office of Professional Responsibility, which was created to investigate allegations of misconduct by Justice Department attorneys. For the office's first 24 years Michael Shaheen was at the helm.

Mr. MICHAEL SHAHEEN (Former Head, Office of Professional Responsibility): No one in OPR for the 24 years I was there was denied the necessary clearance, ever, and much less one that brought to a conclusion an investigation. That just makes it smell the worse.

SHAPIRO: Here's what happened. The Office of Professional Responsibility was looking into the Justice Department's role in the controversial surveillance program. They were also looking at whether the program itself was legal. After the National Security Agency refused to give the OPR lawyers clearances, the head of the OPR shut his investigation down.

Larry Simms, who worked at the Justice Department under Presidents Carter and Reagan, says that's absurd. The National Security Agency and the Justice Department are both parts of the executive branch. So, he says, one can't deny the other clearance. He calls this a bald-faced cover-up.

Mr. LARRY SIMMS (Former Deputy, United States Justice Department): To say that an agency can block an investigation by refusing to give federal investigators here at the Office of Professional Responsibility the clearances they need is just astounding.

SHAPIRO: If the attorney general wanted to, could he see to it that these people got the clearances they need?

Mr. SIMMS: Oh, sure. Would the head of NSA defy the attorney general? It's silly. The whole idea is silly. So what you have to do is you have to look at this as an order that came from the attorney general, with or without the actual knowledge of the president. This is an attorney general slash president issue.

SHAPIRO: Justice Department spokesman Brian Roehrkasse declined to respond to that point, but he said in a statement that the Justice Department has been extremely forthcoming about the surveillance program. He said only those involved in national security with a specific need to know are provided details about this classified program. And he noted that the Office of Professional Responsibility is not in charge of determining whether executive branch programs are legal.

Republican Judiciary Committee chairman Arlen Specter is among those who are not satisfied with that response. Specter's drafting a letter asking for the investigation to proceed with the requisite clearances.

Bruce Fein worked in the Justice Department under President Reagan. He believes the White House must have known of the NSA's decision to block the Justice Department investigation.

Mr. BRUCE FEIN (Former Official of the Justice Department): This is rather bizarre, with the one branch of the executive saying the other branch can't investigate it. Well, they're all beholden to the president of the United States. He decides what is to be unearthed, what is to be disclosed, and it's clear that Mr. Bush is deciding he won't permit any investigation as to the legal advice he received about the warrantless surveillance program of the NSA.

SHAPIRO: Democratic Congressman Maurice Hinchey of New York requested the Justice Department investigation. He says he doesn't know who withheld the security clearances, but he has suspicions.

Representative MAURICE HINCHEY (Democrat, New York): My guess would be the attorney general. My guess would be that the high-ranking people within the Justice Department put a stop to it, and perhaps under the direction of the White House.

SHAPIRO: Indeed, in February, the White House blocked a Senate inquiry into the NSA eavesdropping by refusing to allow former attorney general John Ashcroft and his deputy to testify before the Senate Judiciary Committee about reported internal controversy over the program.

The larger question posed by critics from both parties is this. If the White House is blocking former Justice officials from testifying about this program before Congress, and if the Justice Department's own investigators are blocked from auditing the policy, then what check is there on the president's power?

Ari Shapiro, NPR News, Washington.

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