Last night, it was revealed that the U.S. government has targeted prominent American civil society leaders under the Foreign Intelligence Surveillance Act (“FISA”). The Intercept released the names of five Americans who have been specifically targeted for NSA and FBI surveillance. The justification for targeting these five individuals remains classified. Although the story does not report the legal authority under which they were targeted, these individuals were likely targeted with special warrants issued by the secretive Foreign Intelligence Surveillance Court (FISC).
According to The Intercept, these individuals — political leaders, civil rights activists, academics, and lawyers — hold different political and religious views, but are all of Middle Eastern and Southeast Asian descent, and all have strong ties to Muslim communities. There is no indication that any of these individuals had a history of violent behavior or connections to violent extremists. Notably, although the surveillance started in 2006 and 2007, none of the individuals were notified by the government of the fact that they were targeted for surveillance, or the basis for surveilling them.
Access denounces the U.S. government’s use of secret court orders to target community leaders and civil rights advocates for surveillance. We call on the White House to immediately:
- Investigate the purposes of this targeted surveillance and provide reasonable notice to the targets listed and to other individuals targeted under FISA authorities, and
- Promote legislation to bring U.S. foreign surveillance law in line with the International Principles on the Application of Human Rights to Communications Surveillance and with statements made by members of the Obama Administration, including Secretary of State John Kerry.
A dearth of democratic principles
The U.S. government must investigate and make public the purposes for which these pillars of civil society were targeted for surveillance, and the legal authority for targeting them. These individuals had no history of violent behavior, and led very public, and apparently exemplary, lives. One of the targets, Faisal Gill, even served in the Department of Homeland Security under President George W. Bush and once had a top-secret security clearance.
This surveillance goes against fundamental principles of democratic societies, and does not comport with Secretary Kerry’s recent statement that “the principles governing [surveillance] activities need to be understood so that free people can debate them and play their part in shaping these choices.”
The five individuals named by The Intercept appear to have been singled out as targets of FISC warrants based on their Muslim heritage, exemplifying the abuse that can occur when court proceedings are shrouded in secrecy. This echoes documented abuse of surveillance by the NYPD and the CIA; these agencies targeted Muslim neighborhoods for years without generating a criminal lead or terrorism investigation. As Secretary Kerry said “democracies should collect and share intelligence only for legitimate national security reasons and never to suppress or burden criticism or dissent.” The U.S. does not appear to be living up to this maxim.
Importantly, none of the individuals named in this list were notified that they had been targeted for surveillance, or why they were targeted. “I just don’t know why,” says Faisal Gill, “I’ve done everything in my life to be patriotic.” Gill, who served in the military, is an example of the outward arbitrariness of U.S. surveillance programs. Surveillance orders that do not give timely notice of targeting and the rationale behind the targeting do not afford due process.
Many more individuals may have been targeted for surveillance in a similar fashion to the five named by The Intercept, as their information was pulled from a spreadsheet of 7,485 email addresses targeted for surveillance. The government should provide notice to the five individuals named in The Intercept’s story, and to all other individuals who have previously been targeted under FISA, that (a) they were being targeted for surveillance, (b) the duration for which they were targeted, and (c) the reasons for which they were targeted.
Notifying individuals that they are or have been under surveillance is critical to ensuring due process; without notification, users have essentially no opportunity to challenge the lawfulness of the interference with their privacy. As articulated in the User Notification Principle of the International Principles on the Application of Human Rights to Communications Surveillance, barring rare and exceptional circumstances, users must be notified that they are being surveilled or have been surveilled as soon as practicable. When a competent judicial authority does allow a delay in notification, the individual(s) affected should be “notified as soon as the risk is lifted or within a reasonably practicable time period, whichever is sooner, and in any event by the time the communications surveillance has been completed.” Moreover, delays in notification must be continually reauthorized by a competent judicial authority.
The pressing need for reform
In light of this revelation, Access calls on the U.S. government to implement greater legal controls on and greater transparency surrounding its surveillance programs. The U.S. must reform its surveillance programs to comport with the International Principles on the Application of Human Rights to Communications Surveillance, not to mention the Obama Administration’s own statements regarding surveillance. While the Administration claims to be committed to the principles of rule of law, legitimate purpose, transparency and democratic accountability, among others, in its surveillance practices, today’s revelations represent a significant departure from those standards.