As new reporting by USA Today on Wednesday exposed the scope of the U.S. Drug Enforcement Administration's two-decade secret surveillance operation against American citizens, dubbed USTO and first publicly revealed in January, a human rights organization filed suit for what it called unconstitutional overreach of government power.
In its lawsuit against the DEA, filed Wednesday, Human Rights Watch said that the agency's operation, which collected bulk data on billions of Americans' international phone calls without a warrant, jeopardized the nonprofit organization's work.
"At Human Rights Watch we work with people who are sometimes in life or death situations, where speaking out can make them a target," HRW general counsel Dinah PoKempner said in a press release after the organization filed suit. "Whom we communicate with and when is often extraordinarily sensitive—and it's information that we wouldn't turn over to the government lightly."
USA Today revealed new details about USTO, which started a decade before 9/11 and developed significantly during then-President George H.W. Bush's administration—and eventually came to serve as a prototype for the NSA's more recent surveillance operations:
In 1992, in the last months of Bush's administration, Attorney General William Barr and his chief criminal prosecutor, Robert Mueller, gave the DEA permission to collect a much larger set of phone data to feed into that intelligence operation.
Instead of simply asking phone companies for records about calls made by people suspected of drug crimes, the Justice Department began ordering telephone companies to turn over lists of all phone calls from the USA to countries where the government determined drug traffickers operated, current and former officials said.
The list of countries included in the sweep totaled up to 116 and reached not just Iran, as the DEA has previously admitted, but nations virtually throughout the world—in Central America, South America, Europe, Asia, western Africa, and the Caribbean, as well as Canada.
"The DEA's program is yet another example of federal agencies overreaching their surveillance authority in secret. We want a court to force the DEA to destroy the records it illegally collected and to declare—once and for all—that bulk collection of Americans' records is unconstitutional."
—Mark Rumold, Electronic Frontier Foundation
In its press release following the lawsuit filing, HRW explained, "Human Rights Watch and its staff work regularly on issues in countries the DEA has targeted, investigating and documenting human rights abuses by communicating with witnesses and victims.... It is unclear what safeguards, if any, were in place to prevent further misuse or abuse of the shared records by foreign governments."
Mark Rumold, staff attorney at the Electronic Frontier Foundation, which is representing HRW in its lawsuit, added, "The DEA's program is yet another example of federal agencies overreaching their surveillance authority in secret. We want a court to force the DEA to destroy the records it illegally collected and to declare—once and for all—that bulk collection of Americans' records is unconstitutional."
EFF staff attorney Nate Cardozo said, "The DEA's program of untargeted and suspicionless surveillance of Americans' international telephone call records—information about the numbers people call, and the time, date, and duration of those calls—affects millions of innocent people, yet the DEA operated the program in secret for years."
"Both the First and Fourth Amendment protect Americans from this kind of overreaching surveillance," Cardozo continued. "This lawsuit aims to vindicate HRW’s rights, and the rights of all Americans, to make calls overseas without being subject to government surveillance."
According to USA Today's investigation, U.S. Attorney General Eric Holder shut down USTO in September 2013, following NSA whistleblower Edward Snowden's revelations earlier that summer, and the DEA purged the database it had accumulated. But three months later, the agency was already seeking permission from the Justice Department to restart the operation.
It withdrew that request when agents came up with a solution, USA Today reports:
Every day, the agency assembles a list of the telephone numbers its agents suspect may be tied to drug trafficking. Each day, it sends electronic subpoenas — sometimes listing more than a thousand numbers — to telephone companies seeking logs of international telephone calls linked to those numbers, two official familiar with the program said.
... The White House proposed a similar approach for the NSA's telephone surveillance program, which is set to expire June 1. That approach would halt the NSA's bulk data collection but would give the spy agency the power to force companies to turn over records linked to particular telephone numbers, subject to a court order.
"The disparity between the DEA's under oath statement—that its collection had been 'suspended' and that the resulting database would not be accessed 'for investigative purposes'—and the officials' out-of-court statements—that the program had ended and the data deleted—illustrates the need for this lawsuit," Cardozo wrote in a blog post Wednesday.
PoKempner added, "The DEA surveillance program puts human rights defenders and victims of abuses in grave danger. Such surveillance effectively chills the use of telephones to collect human rights information in some of the world's most dangerous situations, in some of the world's most dangerous countries."