The Obama administration wants everyone to know that it claims the power to conduct dragnet surveillance of American phone records and that it is not going to bother revealing the source of that authority.
The administration has released another redacted version of the May 2004 Department of Justice (DOJ) memo approving the National Security Agency’s (NSA) Stellarwind program; an earlier, more heavily redacted, version of the document had been released in 2011.
Stellarwind, as described by the New York Times, is “a set of warrantless surveillance and data collection activities that President George W. Bush secretly authorized after the terrorist attacks of Sept. 11, 2001.”
In a 2012 documentary, NSA veteran and whistleblower William Binney described the operation this way:
After 9/11 they took one of the programs I had done — the back end of it — and started to use it to spy on everybody in this country. That was a program they created called STELLAR WIND. That was separate and compartmented from the regular activity that was ongoing because it was doing domestic spying.
Despite its egregious violations of the Constitution, Stellarwind remains in effect, apparently, as revealed during a Senate Intelligence committee hearing in February 2014. On that occasion, the then-acting head of the DOJ’s Office of Legal Counsel (OLC), Caroline Krass, admitted to Senator Ron Wyden (R-Ore.) that the Stellarwind memo was still active.
When asked by Wyden, “Has the OLC taken any action to withdraw this opinion?” Krass responded:
OLC generally does not reconsider the status of its prior opinions in the absence of a practical need by an element of the Executive Branch to know whether it can rely upon the advice in connection with its ongoing operations. My understanding is that any continuing NSA collection activities addressed in the May 6, 2004 opinion are being conducted pursuant to authorization by the Foreign Intelligence Surveillance Court, and thus do not rely on the advice of the opinion.