Spy court says NSA exceeded bounds, but judges approved all data requests anyway

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The federal government used the Patriot Act more than 500 times from 2005 through 2011 to secretly obtain records from businesses, including bulk telephone and Internet data, and never once did the secret court charged with oversight turn them down, according to the latest document dump from U.S. spy agencies.

More than 1,000 pages of documents released late Monday show the secret court repeatedly chastised the government for overstepping its authority in collecting data on Americans’ emails, but never shut down the program.

The National Security Agency “exceeded the scope of authorized acquisition continuously during the years of acquisition under these orders,” Judge John D. Bates wrote in a heavily redacted, 117-page opinion released as part of the documents.

The email program was revealed by former government contractor Edward Snowden, but the latest declassified records shed new light on the legal basis for it, including NSA collection of the addresses of senders and recipients, and the subject line and time of each email.

The secret court said that for a period of time, virtually every record generated by the email program included data that hadn’t been authorized. At the beginning, the NSA failed to properly control the information it obtained on Americans, allowing it to be shared outside of the small group that was supposed to have access.

“The government has provided no meaningful explanation why these violations occurred, but it seems likely that widespread ignorance of the rules was a contributing factor,” Judge Bates concluded.

Despite those criticisms, he allowed the program to continue.

It was shut down in 2011, reportedly because President Obama concluded it wasn’t producing enough valuable intelligence. Just months before that decision, the documents show, the intelligence community was still assuring judges that the program was vital to national security.

Michael Birmingham, a spokesman for the Office of the Director of National Security, said there were several reasons for ending the program.

“The decision was made in 2011 to cease collecting email and Internet content from Americans in bulk due to operational and resource reasons,” he said.

In his opinion, Judge Bates attributed the consistent failures of NSA officials to abide by the rules to “poor management, lack of involvement by compliance officials, and lack of internal verification produces — not bad faith.”

The NSA did not respond to requests for comment.

Elizabeth Goitein, co-director of the Brennan Center for Justice’s national security program, said the revelations show an agency that has systematic trouble following the rules.

“Either the NSA is trying to comply with the court’s order and it’s absolutely incapable of doing so, which quite worries us, or it’s not really trying that hard,” she said. “None of those answers really inspires a lot of confidence.”

Since the Sept. 11, 2001, attacks on the U.S., the federal government has claimed broad legal authority to collect records in its hunt for terrorists, including the power to demand that major Internet and telephone companies turn over records on their customers’ communications.

The demands, issued under a gag order that threatened executives with jail, covered past records and real-time information about billions of telephone calls and emails received or sent by Americans and others around the world, regardless of whether they were under direct suspicion. The orders did not cover the text of the email or the sounds of voices on a call.

The government stored the metadata for a set period, but said it queried the data only when it was relevant to an active counterterrorism investigation.

According to the documents, the government issued 539 business records requests from fiscal year 2005 to 2011.

The number dropped dramatically in the last years of the Bush administration, from 155 in 2005 to just six requests in 2007. But under Mr. Obama, it leapt to 96 in 2010 and reached a high of 205 in 2011 — the most recent year for which information was released.

The secret court, chartered under the Foreign Intelligence Surveillance Act, approved every one of those requests, though the judges did require modifications to more than a quarter of them.

Mr. Birmingham, the intelligence spokesman, said that shows security officials are diligent in crafting their requests to fall under the law.

“We do not submit a request unless we think it will be approved by the Foreign Intelligence Surveillance Court,” he said, pointing out the number of times the court asks for modifications as proof that the system works.

Indeed, of the 205 requests approved in 2011, the court demanded changes to 176 of them.

Ms. Goitein said the newly released documents show the secret court isn’t a rubber stamp, but “at the end of the day, the bottom line is the court, for whatever reason, feels it must grant the authority the NSA is asking for.”

Also included in the documents were training manuals for spy agency employees. A 2009 document was a 131-page briefing for an NSA Cryptological School course laying out compliance procedures for bulk collection of email and telephone data.

The document goes through constitutional issues and gives a history of government abuse of data collection in the middle of the last century, then outlines powers and limits for those using the programs.

“No matter how inconvenient the rules may seem, if we fail to adhere to them, the next set of rules will be far stricter,” one slide says.

The next slide reads: “There are very few things we cannot accomplish with the existing rules, using the authorities we have and those authorities we can receive.”

The continued revelations about the secret programs have sparked heated debate on Capitol Hill, where a coalition of Democrats and Republicans is trying to reel in the snooping.

Rep. F. James Sensenbrenner Jr., the Wisconsin Republican who sponsored the Patriot Act that the administration uses as its authority, said the intelligence agencies have gone too far, and he has written a bill to end bulk-data collection.

“The Patriot Act never would have passed in September and October of 2001 had there been any inclination at all that [it] would have authorized bulk collections,” he said in a speech Tuesday at the Georgetown University Law Center.

Even as the legislative fights heat up, the courts are being asked to step in.

On Monday, a conservative public interest lawyer asked a federal district court in Washington to halt the data collection, and a court in Manhattan is scheduled to hear a similar plea from the American Civil Liberties Union on Friday.

Also Monday, the Supreme Court declined to hear a challenge from the Electronic Privacy Information Center to the NSA records collection. The center argued that the Supreme Court should hear an appeal of one of the secret court’s orders revealing that some Verizon customers’ phone records were collected as part of the snooping.

© Copyright 2014 The Washington Times, LLC. Click here for reprint permission.

About the Author
Shaun Waterman

Shaun Waterman

Shaun Waterman is an award-winning reporter for The Washington Times, covering foreign affairs, defense and cybersecurity. He was a senior editor and correspondent for United Press International for nearly a decade, and has covered the Department of Homeland Security since 2003. His reporting on the Sept. 11 Commission and the tortuous process by which some of its recommendations finally became ...

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