NOVEMBER 04, 2013
(Washington, DC) – Judicial Watch announced today that it has it has obtained a series of emails between members of President Obama’s newly created Review Group on Intelligence and Communications Technologies (Review Group) and the Privacy and Civil Liberties Oversight Board (Oversight Board) that show that the Obama administration advisers had long standing concerns about the Patriot Act which authorized controversial NSA surveillance of Americans’ telephone and Internet activities.
The emails came in response to an August 28, 2013, Judicial Watch Freedom of Information Act (FOIA) request to the Oversight Board asking for “any and all records of communications between any member of the Privacy and Civil Liberties Oversight Board” and Review Group members Richard A. Clarke, Michael J. Morell, Geoffrey Stone, and Cass Sunstein.
The emails produced by the Oversight Board in response to the FOIA request include an email chain between Board Chairman David Medine and Review Group member Peter Swire, a former Special Assistant to Obama, who helped draft the Patriot Act. Previously, in the Clinton administration, Swire also chaired a 15-agency White House Working Group that updated electronic surveillance law for the Internet age. (Though Swire’s name is redacted in the documents, the academic affiliations in the email auto-signature leave little doubt as to his identity.)
The email chain begins with Medine asking Swire about a 2004 paper he wrote in which he predicted that Section 215 of the Patriot Act was subject to broad interpretation: “Similarly, by permitting the order to cover records of all persons, the literal terms of Section 215 would permit an entire database to be the subject of a FISA order.” Medine then asked Swire what in the statute or its legislative history led him to that conclusion.
In Swire’s response, he notes that, “As some other background, I was quite involved in fly-specking language of provisions during the passage of the Patriot Act. Two or three of the provisions that I criticized actually got pared back during the legislative process. I think one was giving CIA access to essentially any records held elsewhere in the government. Another was a criminal provision that could have put low-level IT managers in jail for ten years if a terrorist used their system or something like that.”
Perhaps the most revealing email was written two days later (on July 27, 2013, shortly after the Snowden leaks of NSA documents), when Swire wrote to Medine, “In retrospect, perhaps it is too bad that I was so pessimistic about how 215 would be interpreted . . . As written, the article makes it harder to say we are shocked today that 215 would be read so broadly. The 2004 view of that law professor seems broadly consistent with the reading they used later to justify the phone records program.” [Emphasis added.]
Though Obama touted his Review Board as “outside experts,” all have lengthy experience as government appointees. In a 2012 New York Times op-ed, former National Security Council member Richard Clark said that the Department of Homeland Security had the power to “inspect what enters and exits the United States in cyberspace.” Former Obama Administrator of the White House Office of Information and Regulatory Affairs Cass Sunstein in a Harvard working paper suggested that the government “cognitively infiltrate … chat rooms, online social networks, or even real-space groups and attempt to undermine percolating conspiracy theories …”
“These emails suggest that concerns about NSA surveillance now include advisers to President Obama,” said Judicial Watch president Tom Fitton. “And the emails seem to confirm that the Patriot Act specifically authorized the very type of ‘data mining’ that is now causing so much controversy.”