Conservatives turn to NSA for help getting White House records

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In a new twist to the surveillance debate, conservative groups are asking the National Security Agency for help obtaining phone and email records about the Obama administration.

Republicans on Capitol Hill and right-leaning organizations have asked the National Security Agency to hand over email and phone records about the Internal Revenue Service and the Environmental Protection Agency. They say they have little other recourse because agencies have stonewalled their requests for documents, at times by claiming messages were lost or stolen.

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“If the government can collect data on American citizens without a warrant and use it in court or investigation, there is no immunity exempting government officials from having their data collected without a warrant and used in court or investigations,” Donny Ferguson, a spokesman for Rep. Steve Stockman (R-Texas), told The Hill in a statement.

“If Obama is going to violate rights it must apply to government officials as well or else we have an oligarchy.”

On Friday, Stockman asked the NSA for any and all “metadata” on emails sent by former IRS official Lois Lerner, who has been at the center of a controversy over the agency’s scrutiny of Tea Party organizations seeking tax-exempt status.

His letter came hours after the tax agency said that nearly two years’ worth of emails had been lost when Lerner’s computer crashed in 2011, news that prompted broad condemnation from Republicans in Congress.

Under an NSA program known as Stellar Wind, which continued until 2011, the agency reportedly collected bulk data about where people sent and received emails, but not the actual content of those emails.

Stockman isn’t the only one looking to the NSA for help in tracking down officials’ records.

Last week, the Competitive Enterprise Institute, Free Market Environmental Law Clinic and the Energy and Environment Legal Institute filed a lawsuit against the NSA for not handing over records about text messages and calls that EPA chief Gina McCarthy and former Administrator Lisa Jackson made through their private accounts and devices.

The groups say that McCarthy and Jackson likely communicated with environmental lobbyists and performed other work-related business in those messages, yet the proof has remained hidden because they were not on official lines of communication. 

The groups first sent a Freedom of Information Act (FOIA) request to the EPA but were told that the records were personal and, in at least one case, that thousands of McCarthy’s text messages had already been deleted.

After that, the groups turned to the NSA, which tracks information about which numbers people dial, and the length and frequency of their calls under another program revealed by former contractor Edward Snowden last year.

The NSA has refused to comply with their request, prompting the lawsuit.

“NSA possesses at minimum the metadata that will help further illuminate this (non-) excuse for wholesale destruction of an entire class of records,” said Chris Horner, the lawyer suing the NSA on behalf of the three groups, in an email. “And NSA has refused to produce information to assist the taxpayers in seeking to get to the bottom of an unlawful, wholesale EPA record-destruction operation.”

Horner added that the agency “can be a resource going forward for other document-destroying federal agencies it inadvertently sweeps up in its broader information gathering activities on citizens.”

Steven Aftergood, who leads the Project on Government Secrecy at the Federation of American Scientists, was skeptical that FOIA requests or letters would be enough to sway the NSA to hand over records, however.

“I think it’s unlikely they would be released in the course of a routine political dispute and especially under the Freedom of Information Act,” he said. “There’s a slightly greater chance that they would be disclosed in response to a subpoena or in response to legislation to compel.”

Since the Snowden leaks last year, the NSA has received thousands of FOIA requests but has not complied in many instances.

There are nine exemptions allowing an agency to deny a FOIA request, including documents classified to protect national security and to prevent the invasion of someone’s personal privacy. On top of that, the Foreign Intelligence Surveillance Act imposes various restrictions on the records that could prevent some information from getting out.

Horner said that none of those should prevent his request from going forward.

“Certainly not to EPA’s phone bills and other evidence helping reconstruct unlawful EPA record destruction,” he wrote in the email.