Ever since a former National Security Agency contractor blew the cover off two massive, top secret intelligence collection programs that targeted phone records and Internet data, President Obama and senior NSA officials have insisted that the programs target only foreign terror suspects.
In any case, Mr. Obama and the NSA have argued, a warrant is required to target Americans’ communications.
But according to newly revealed secret documents, the NSA retains wide discretion over targeting individuals for surveillance based on whether they are “reasonably believed” to be outside the US – as well as over what to do with communications data on Americans that are “inadvertently acquired.”
The documents, which were published by The Washington Post and Guardian newspapers late Thursday, are purported to be from the Federal Intelligence Surveillance Court in Washington and focus on intelligence programs operated under section 702 of the Patriot Act – which targets foreigners. The court, which was established by the Foreign Intelligence Surveillance Act (FISA), rules on overseas requests for surveillance warrants against suspected foreign agents or terror suspects.
The NSA surveillance programs were publicly revealed a week ago in top secret documents leaked to the Guardian and the Post. Edward Snowden, the former NSA contractor, said he leaked the documents to expose an overreaching spy program. The NSA is charged with spying overseas – but by law may not spy on Americans at home or abroad – without a warrant.
On Friday, US officials said federal prosecutors have filed a sealed criminal complaint against Mr. Snowden, charging him with espionage and theft. The United States has also asked Hong Kong, where he is believed to be hiding, to detain him on a provisional arrest warrant.
Before the latest documents became public, the NSA sought to reassure the American public that its surveillance programs were beneficial.
In hearings Tuesday before the House Select Committee on Intelligence, Gen. Keith B. Alexander, the head of the NSA, told the committee that the surveillance had helped prevent “potential terrorist events over 50 times since 9/11” and that 10 of the plots involved terror suspects or targets in the United States.
“In the 12 years since the attacks on Sept. 11, we have lived in relative safety and security as a nation,” General Alexander said. “That security is a direct result of the intelligence community’s quiet efforts to better connect the dots and learn from the mistakes that permitted those attacks to occur on 9/11.”
But even as the drama of the pursuit and possible prosecution of Snowden unfolds, the new details that came to light late Thursday, which spell out procedures for those programs, seem likely to spur further foment in Congress and the American public.
Determining whether a target is inside the US or not, is a key uncertainty addressed by one legal FISA court document on “targeting non-United States persons.”
If it’s not clear where the person is, the document indicates the NSA analyst will tap various other sources of information. If an analyst “reasonably believes” the target is outside the US – the search proceeds.
Yet even if the target’s whereabouts are unknown, the default setting is: search.
"In the absence of specific information regarding whether a target is a United States person," the document says, "a person reasonably believed to be located outside the United States, or whose location is not known, will be presumed to be a non-United States person unless such person can be positively identified as a United States person.”
Another key document dealing with so-called “minimization procedures” spells out those procedures the NSA must follow to minimize the invasion of Americans’ privacy if it mistakenly collects communications data on an American while targeting someone it believed was a non-US resident. It turns out, however, that such data may be kept for up to five years if it is deemed by top NSA officials to include useful intelligence information; evidence of a crime; a threat to people or property; cybersecurity information; or if the information is encrypted.
Even attorney-client communications can be kept if “foreign intelligence information” is considered to be included in it. The content of communications can also be taken from “US based machine[s]” if an analyst needs it to determine whether a target is located in the US. If the target is identified as in the US, the procedures say the surveillance has to stop at least until a warrant is acquired.
“These documents confirm many of our worst fears,” Jameel Jaffer, the American Civil Liberties Union’s deputy legal director, said in a statement Friday. “The 'targeting' procedures indicate that the NSA is engaged in broad surveillance of Americans' international communications.”
The “minimization' procedures” referenced at Tuesday’s hearings to protect Americans' constitutional rights “turn out to be far weaker than we imagined they could be,” he said.
The procedures, he noted, would even allow the NSA to collect and disseminate attorney-client communications – and, in some circumstances, to turn them over to Justice Department prosecutors. The government also “claims the authority to retain Americans' purely domestic communications in certain situations," Mr. Jaffer said.
“Congress needs to do much more – and so does the president – to exercise far more oversight,” says Ginger McCall, Director of the Open Government Program, at the Electronic Privacy Information Center, a Washington-based advocacy group in an interview. “The NSA needs to cease or substantially modify these overreaching programs.”
There are signs of concern percolating in Congress, too. On Thursday, a bill was introduced in Congress to require the Obama administration to declassify the secret legal rulings that justify NSA surveillance. The disclosure bill is sponsored in the House by Rep. Adam Schiff (D) of California and Todd Rokita (R) of Indiana. A companion bill emerged in the Senate last week.
The bill would "increase the transparency of the FISA Court and the state of the law in this area," Mr. Schiff told the Guardian. "It would give the public a better understanding of the safeguards, as well as the scope of these programs."