For more than two years, the National Security Agency violated legal guidelines set up by the secret federal intelligence court that oversees it, misleading the court’s judges about the surveillance it was conducting, top secret court documents released by the Obama administration show.
The court documents, released Tuesday, include a harshly worded court opinion in which a federal judge berates the NSA not just for failing to conduct phone record searches in accord with legal guidelines meant to protect Americans’ privacy, but for misleading the court that agency searches complied with those guidelines – when, most often, they did not.
While the release of the documents served to comply with the administration's pledges of increased transparency regarding surveillance policy and safeguards to Americans' privacy, critics of that policy said the documents' contents provide evidence of serious limitations in the judicial oversight of surveillance practices.
The Foreign Intelligence Surveillance Court (FISC) provides secret legal opinions intended to oversee intelligence community requests for surveillance. Under the court’s supervision, the NSA began collecting phone metadata in 2006 – the phone numbers at either end of a call, the call’s duration, time of day and other data, but not the content of the call itself.
Along the way, the court laid out guidelines for the NSA to meet in handling the data and conducting searches that were intended to protect Americans’ privacy. The court ruled, for instance, that the metadata should only be searched if there was “reasonable, articulable suspicion” of a link to terrorism or in an emergency.
Yet from May 2006 to January 2009, the NSA violated the court’s mandate, searching the telephone metadata it collected each day from the nation’s phone companies against an “alert list” of thousands of international and domestic phone numbers, according to a March 2009 opinion written by a FISC judge.
Only a fraction of those list numbers – about 10 percent of the 17,835 phone numbers on the government’s list in early 2009 – had a “reasonable, articulable suspicion” of a link to terrorism, as the court discovered in early 2009.
That’s when the Department of Justice notified the FISC that the NSA’s “alert list” search terms were not in compliance with the court’s requirements. Judges overseeing the court were not amused by the revelation.
“The government has compounded its noncompliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process” to the court, Judge Reggie Walton wrote. “It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses" the earlier collected phone metadata.
After the discovery, a full-blown investigation ensued. It found that more than 200 analysts from the FBI, CIA, and the National Counterterrorism Center had access to “query results” from the metadata database that did not correctly mask the identities of US persons, the Washington Post reported.
One of several examples cited in the March 2009 court opinion occurred from Dec. 10, 2008, to Jan. 23, 2009, when two NSA analysts used 280 foreign telephone identifiers to query the database “without determining that the Court’s reasonable articulable suspicion standard had been satisfied,” the March 2009 opinion by Judge Walton stated.
While the court has, at times, been accused of being a rubber-stamp for the NSA, the FISC judges’ opinions indicate a high level of frustration.
Another FISC judge, John Bates, also chided the NSA in 2011 for violations in another surveillance program, including misrepresentation by the agency. His 2011 opinion was released by intelligence officials last month.
But that opinion was milder than Walton’s.
“It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses [the telephone metadata]," Walton wrote.
“This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions,” he added. Privacy guidelines “have been so frequently and systemically violated that it can fairly be said that this critical element of the overall [phone records] regime has never fully functioned effectively,” he said.
In an explanation, Gen. Keith Alexander, the NSA’s chief, wrote the court saying that some analysts had mistakenly thought that privacy guidelines applied only to archived metadata – not batches collected daily, according to the March opinion.
“That interpretation of the court’s orders strains credulity,” Walton wrote.
Release of the 14 FISC court documents by the Office of the Director of National Intelligence came in response to Freedom of Information Act lawsuits filed by the American Civil Liberties Union and the Electronic Frontier Foundation. As well, public debate has surged since news stories unveiling the existence of the massive NSA telephone metadata program in documents leaked by Edward Snowden, a former NSA contractor.
In response, the Obama administration last month, in full-blown damage-control mode, announced it would develop new ways to provide the public with satisfactory transparency on how NSA surveillance impacts Americans’ privacy.
“The documents released today are a testament to the government’s strong commitment to detecting, correcting, and reporting mistakes that occur in implementing technologically complex intelligence collection activities, and to continually improving its oversight and compliance processes,” said James Clapper, the director of national intelligence, in a statement Tuesday.
Calling the problems cited by the court “compliance incidents,” he blamed “the complexity of the technology ... and a lack of a shared understanding among various NSA components about how certain aspects of the complex architecture supporting the program functioned.”
Those “gaps in understanding led, in turn, to unintentional misrepresentations” in the way the collection was described to the FISC, he said.
But some say the FISC court’s agitation in its written opinions, shows signs of a deeper problem: an inability of the FISC and NSA system to police itself in order to ensure Americans’ privacy rights are protected, civil libertarians say.
“A core part of the Obama administration’s defense of the NSA’s programs has been that they are conducted under judicial oversight,” says Faiza Patel, co-director of the Liberty and National Security Program at the Brennan Center for Justice in New York. “These documents show the limitations of that oversight."
The new FISC documents, she and others say, cast doubt on NSA officials’ claims that the agency has a powerful culture of respect for American’s privacy and is internally geared toward self-reporting its mistakes.
“These documents show that the NSA repeatedly violated court-imposed limits on its surveillance powers, and they confirm that the agency simply cannot be trusted with such sweeping authority,” said Alex Abdo, staff attorney with the ACLU National Security Project, in a statement.
In his March 2009 opinion, FISC's Walton went on to express doubt about the metadata program’s value in fighting terrorism, writing that the government had identified only three FBI preliminary investigations that were opened as a result of tips gleaned from the database.
“The time has come for the government to describe to the Court how, based on the information collected and analyzed during that time, the value of the program to the nation’s security justifies the continued collected and retention of massive quantities of US person information,” he wrote.
The problem is that the FISC can order protections for Americans’ privacy, “but it must rely almost exclusively on the NSA’s good faith to make sure they are implemented,” said Ms. Patel. “When the reviewing court says it no longer has confidence in the Agency’s efforts to comply with its orders, something is very wrong.”
Some lawmakers echoed that assessment as well.
“Americans deserve to understand more about the NSA’s collection and use of their phone records, and in particular about the types of systemic problems revealed in these documents,” said Senate Judiciary Committee Chairman Patrick Leahy (D) of Vermont, in a statement yesterday.
“Today's disclosure demonstrates the need for close oversight and appropriate checks and balances," he added.