Spy court never said no to NSA data quest

Gave with one hand, slapped with the other

The Washington Times Daily - - Front Page - BY SHAUN WATER­MAN STEPHEN DINAN

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. Gotein 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.

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