In another release from First Look Media, a US-based organization disseminating Edward Snowden’s disclosed information, The Intercept revealed the names of five Muslim-Americans listed on an NSA surveillance spreadsheet. The release primarily focuses on email addresses targeted for surveillance under the Foreign Intelligence Surveillance Act, listed in Snowden’s documentation as “FISA recap.”
Five of the email addresses belong to politically-active civil rights activists, attorneys, and political figures: Asim Ghafoor, Agha Saeed, Faisal Gill, Nihad Awad, and Hooshang Amirahmadi.
The Intercept raises a question of legitimacy in tracking the email accounts of individuals who have never been charged with a crime or connected with terrorist activity. In the cloudy atmosphere of government classification, reports remain inconclusive.
Several released email addresses belong to individuals long suspected of ties with al-Qaida such as Anwar al-Awlaki. Analyses of the five public figures identified this morning, however, are causing raised eyebrows among news and civil rights organizations alike. Faisal Gill served the Bush Administration as a security operative in the Department of Homeland Security, while Agha Saeed and Nihad Awad are both public civil liberties advocates supporting Muslim-Americans and Palestinians.
One of the major problems surfacing from this release is the conflict of interest between security and transparency. Concerned citizens, press organizations, and civil rights activists are demanding to know the NSA’s justification for targeting these public figures. In the wake of the Snowden releases, the current administration is caught in a balancing act between press-oriented damage control on the one end and preserving the confidentiality of the National Security Administration on the other.
The White House has already implicitly admitted to the potential need for reform by creating a review panel in response to the Snowden leaks. If surveillance under FISA does in fact need reform, and citizens are being unfairly targeted, these citizens will need information in order to properly address potential government abuses.
The push-and-pull between citizens seeking more information and the National Security Agency attempting to reign in classified data will intensify if revelations like the one in today’s Intercept release continue. Individuals can only challenge government surveillance in court if they can prove that they are specific targets. Snowden’s “FISA recap” spreadsheet provides over 7,000 individuals with that evidence. While it may turn out that the majority of these cases have sufficient probable cause, the five names released today provide cause to question law enforcement’s claim that the process is too strict to be abused.
In the case of attorney Ghafoor, the released documentation revealed that he had been taped speaking with his clients. Not for the first time, NSA revelations reveal an unsettling tension between targeted surveillance and longstanding confidentiality laws. To target a lawyer, a health professional, a counselor, a professor, and a number of other professions is to also target conversations with students, clients, patients, and other individuals who are supposed to be protected under national law.
Clark vs. the United States set the precedent for officials to overstep attorney-client privilege if the client seeks out the attorney to further criminal activity. Whether that may have been the case with Ghafoor, however, cannot be discussed as long as the NSA’s justifications fall under the “classified” umbrella. After the American Bar Association requested a response, the ABA Journal released a statement from the NSA assuring that it remains “firmly committed to the rule of law and the bedrock legal principle of attorney-client privilege.”
The problem is not whether the FISA process allowed for sufficient justification to target these individuals. The Intercept spoke to a former FBI attorney who asserted the robustness of the overall procedure:
Even if the government obtained FISA warrants to monitor some or all of the five Muslim-Americans, the law’s standards do not always appear to be applied uniformly. More than a dozen former and current law enforcement officials contacted by The Intercept say that the process for seeking a FISA warrant is so bureaucratically complex and larded with privacy safeguards that it is essentially inviolate. If the surveillance court approved a warrant, they say, then the target must have deserved it.
“The Justice Department was notoriously difficult to get a FISA warrant through,” says Bowman, the top FBI lawyer for national security matters from 1995 to 2006. “They always wanted more than probable cause. And so they would frequently, at least 50 percent of the time, send it back [to the FBI] with questions.”
The prevailing concern facing current US citizens, especially politically active minorities and those critical of White House policy, is the inability to obtain the aforementioned warrant.
Even if the FISA process is sufficiently robust and every single name on the list is included for a justifiable reason, the murky waters of government confidentiality make it nearly impossible for targeted individuals to address the validity of the government’s claims.