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CEI sues the NSA

CEI sues the NSA

The Central Intelligence Agency recently entered the 21st century with uncharacteristic humor. Its first foray into social media began, “We can neither confirm nor deny that this is our first tweet.” Whoever thought the CIA would provide comic relief? We certainly need it in Washington, where politicians and policy wonks often take ourselves too seriously. But humor and sarcasm can also make a serious point.

Last week my organization, the Competitive Enterprise Institute, got some guffaws when we filed a lawsuit against the National Security Agency—though not for the reasons you might think. We did it because of the Environmental Protection Agency. And the reason is quite serious.

As many Human Events readers know, the EPA and CEI haven’t been on exactly friendly terms since we uncovered former EPA Administrator Lisa Jackson’s use of private email accounts for official business. (Since stepping down, I only presume she has learned how private email accounts are actually supposed to be used!) Jackson’s successor, Gina McCarthy, promised Congress that she and her senior staff would not only abide by the laws governing official government communications, but make the EPA a fine example of the Obama Administration’s commitment to government transparency.

Cue the reference to my son’s t-shirt emblazoned with, “Sarcasm – just one more service I offer.” If the McCarthy-led EPA signaled a change from the Jackson-led EPA, where stonewalling was the order of the day, we sure missed it.

During the past year, we have filed numerous Freedom of Information Act requests for cell phone and text message records that we believe will show the degree to which left-leaning environmental pressure groups have had unfettered, back-channel access to EPA leadership. The EPA informs us it doesn’t store such data. But that doesn’t mean someone else hasn’t stored it.

Cue Edward Snowden.

We know from Snowden’s  revelations—and from the government’s panicked and embarrassed response to them—that the NSA has metadata on … well, practically everybody. Or at least everybody who uses a cell phone—including Gina McCarthy and her deputies.

That, of course, means the NSA might have the information that the EPA claims is non-existent. So we are asking the federal government to snitch on itself. And that is actually kind of funny. As my colleague Chris Horner put it, “We have found the silver lining of the NSA affair: While spying on all of us, our federal spooks inadvertently caught some of their law-breaking political operatives at EPA.”

In short, we are seeking the government’s own secret data to check up on other agencies. We might as well use the phone-snooping program that has so offended so many Americans to a good use.

I should note that I have no objection to senior government officials having secondary email addresses and private email accounts. I get enough crazy and spam emails, myself, so I can only imagine what the head of a government agency has to deal with. But when internal EPA documents indicate addresses have been scrubbed from the agency’s content management system, we have a problem. As electronic records, they should have been stored as required by law.

The NSA is probably annoyed by the lawsuit. But they brought it on themselves. In a response to our filing, the agency is trotting out the usual national security objections. “Our adversaries are likely to evaluate all public responses related to these programs,” reads the NSA’s response. “Were we to provide positive or negative responses to requests such as yours, our adversaries’ compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.”

Sounds scary, until you realize that the only “adversary” here appears to be the American people.

It would have been funnier if they’d just said they would neither confirm nor deny the existence of those records.

Lawson Bader is president of the Competitive Enterprise Institute (CEI).

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