New NSA Documents Make Case For Keeping Surveillance Programs Secret

By Eyder Peralta

Published December 21, 2013 at 3:42 PM EST

U.S. Army Gen. Keith Alexander, commander of the U.S. Cyber Command, director of the National Security Agency (NSA), testifies during a Senate Appropriations Committee hearing on Capitol Hill, in June.

The Director of National Intelligence declassified a set of 10 court documents on Saturday, in which both the Bush and Obama administrations argue that sensitive NSA programs should be kept secret.

The administration declassified the documents under a court order related to two lawsuits filed the Electronic Frontier Foundation.

If you look at the press release from the DNI, the big headline is that the Obama administration has finally decided to publicly admit President George W. Bush authorized the collection of bulk amounts of Internet and phone metadata in a program referred to as the "Terrorist Surveillance Program."

Essentially, the documents explain, in the aftermath of Sept. 11, Bush believed that allowing the NSA swifter access to phone and Internet metadata could help prevent another terrorist attack. Bush authorized this kind of surveillance until 2004, when authorization was shifted to the Foreign Intelligence Surveillance Court.

All this we already knew, though, both through media reports dating back to 2005 and, more recently, documents leaked by former NSA contractor Edward Snowden.

The documents, however, do show something interesting: Both the Bush administration and the Obama administration believe these surveillance programs are critical to national security and both of them believe it is critical to keep them secret.

In a 2007 court filing, Gen. Keith Alexander, the director of the NSA, said the metadata collection programs "are among the most important intelligence tools available to the United States for protecting the Homeland from another catastrophic attack."

He goes on to ask the court to dismiss the case before them, because it could reveal sensitive sources and methods. They don't even want to confirm or deny the existence of the program, or if a person is under surveillance, or if an Internet company is handing them information, he said, because then terrorists could find out where the safe havens are.

In a Dec. 20, 2013 filing, James Clapper, the director of National Intelligence, makes much the same argument.

Despite the fact that Osama bin Laden is dead and al-Qaida is on the run, Clapper argues, the threat of terrorism is real and these tools are essential. And despite the fact that many facets of these programs have come to light, much should remain secret, Clapper writes.

Both the Bush administration and the Obama administration also deny that the government is running a "dragnet surveillance" program, as the EFF claims. Instead, they argue they are running programs with clear limits and minimization procedures that protect the Constitutional rights of Americans. But, they say, they can't make many of those steps public because it would tip off the terrorists.

"I concur with the the NSA that to the extent it must demonstrate that the NSA has not otherwise engaged in the alleged content dragnet, highly classified details about the scope and operation of the [Terrorist Surveillance Program] was not the content dragnet plaintiffs allege, or demonstrate that the NSA has not otherwise engaged in the alleged content dragnet, highly classified details about the scope and operation of the TSP and other NSA intelligence activities would be disclosed, including NSA intelligence sources and methods, thus risking exceptional harm to national security," Clapper wrote.