National Security Agency officials violated secret federal court orders authorizing the daily collection of domestic email and telephone data from hundreds of millions of Americans, according to previously top-secret documents made public Wednesday by the Obama administration.
The documents didn’t disclose specific details of the violations. But they said that the Foreign Intelligence Surveillance Court imposed temporary restrictions on the programs after it learned of the violations until it was satisfied the NSA had revamped its procedures to conform to court requirements.
Several senior members of the Senate Intelligence Committee, when approached about the breaches, said they were aware of them but declined to answer questions about their nature.
“I don’t know why you need to ask me,” said the panel’s chairwoman, Sen. Dianne Feinstein, D-Calif.
A spokesman for Sen. Ron Wyden, D-Ore., told McClatchy that Wyden, who is also a member of the Intelligence Committee, was referring to the violations in an interview he gave Tuesday to MSNBC. An outspoken critic of the NSA programs, Wyden said that the breaches involving telephone call data were “serious.”
Since the data collection was revealed in June by former NSA contractor Edward Snowden, the administration repeatedly has defended the sweeping collection of phone records as lawful, critical to anti-terrorism efforts and subject to exacting rules intended to protect privacy.
On Wednesday, the Obama administration made public a copy of a FISA court order that spelled out those limits. The order said NSA “shall restrict access” to the phone data “to authorized personnel who have received appropriate and adequate training.” The released document blacked out to whom the order had been directed, but its docket number matches a related order to Verizon Business Services that Snowden leaked to The Guardian newspaper. The number of blacked-out lines, however, suggest that the document, which was labeled “primary order,” applied to more companies than just Verizon.
The administration declassified the order and the documents that discussed the violations shortly before a Senate Judiciary Committee hearing at which senior officials from the Justice Department, the NSA and the Office of the Director of National Intelligence pressed their defense of the programs’ legality.
In a related development, The Guardian on Wednesday published another top-secret document leaked by Snowden that detailed a previously unknown NSA program that can chart individuals’ Internet activities in real time. It also allows analysts to search databases holding the emails, online chats and browsing histories of millions of people, according to the document.
The document touted the XKeyscore program as the NSA’s “widest-reaching” tool for developing intelligence from the Internet and said it mined the web from 150 locations around the globe. The revelation was immediately denounced by the Republican chairman and the Democratic senior member of House Intelligence Committee, who called the story “irresponsibly misleading.”
“This program does not target Americans,” Reps. Mike Rogers, R-Mich., and C.A. Ruppersberger, D-Md., said in a statement. “Further, the program reference in the story is not used for indiscriminate monitoring of the Internet, as many falsely believe. Rather the program is simply a tool used by our intelligence analysts to better understand foreign intelligence, including terrorist targets overseas.”
The developments added to the political uproar ignited by the Snowden leaks, which disclosed how the NSA collected “metadata” from the daily telephone calls and emails of tens of millions of Americans from commercial service providers with the authorization of the secret Foreign Intelligence Surveillance Court.
The administration says that it closed the bulk email collection program in 2011 after an internal review showed it had not proven useful to detecting terrorist plots. But some experts question whether such sweeps continue under a different initiative.
Metadata is generated by every telephone call and email. While it doesn’t include content, metadata can be used to chart the numbers and locations of callers and the people they contact, as well as the calls’ duration. Email metadata include the email addresses of senders and recipients. Experts say the information can be used to track people and build intimate portraits of their social circles and habits.
Liberal Democrats and libertarian Republicans assail the collections as excessive government surveillance. Some lawmakers are proposing restrictions, and House critics from both parties narrowly lost a vote last week to cut funding for the program. President Barack Obama, top aides and senior intelligence officials are pushing back, insisting that the programs are legal tools that provide information critical to uncovering terrorist plots.
The administration stresses that the programs are safeguarded by “an excessive regime of internal checks” and congressional oversight to ensure that U.S. intelligence officials and the FBI don’t violate Americans’ constitutional right to privacy. The data is stored in huge digital repositories for five years and only a “tiny fraction” can be reviewed with Foreign Intelligence Surveillance Court’s permission, they say.
“The vast majority of that information is never reviewed by anyone in the government,” said a Dec. 14, 2009, letter that the Justice Department sent to the House Intelligence Committee in a bid to win congressional renewal of the USA Patriot Act provision allowing the data sweeps.
The letter, one of the three documents that the administration declassified and released on Wednesday, revealed that an undisclosed number of “technical compliance problems and human implementation errors in these two bulk collection programs were discovered as a result of Department of Justice reviews and NSA oversight.”
“Neither the Department, NSA nor the FISA court has found any intentional or bad-faith violations,” the letter said.
The letter provided only a broad, convoluted description of the violations. “The problems generally involved the implementation of highly sophisticated technology in a complex and ever-changing communications environment which, in some instances, resulted in the automated tools operating in a manner that was not completely consistent with the specific terms of the court’s orders,” it said.
The problems were reported to the FISA court, which ordered unspecified “remedial action” and imposed unidentified “additional safeguards,” as did the NSA, the letter said.
A Feb. 2, 2011, Justice Department letter to the Senate Intelligence Committee reported the same violations in the same language. Several parts of the section of the letter dealing with the breaches, however, were blacked out. But it disclosed that the Foreign Intelligence Surveillance Court “placed several restrictions” on the programs until the problems were fixed.
The administration came under fire from Sen. Al Franken, D-Minn., for releasing the documents just before the Senate Judiciary Committee hearing, but no panel member brought up the violations.
The Office of the Director of National Intelligence “has known for weeks that this hearing is coming, and yet, ODNI released this material just a few minutes before the hearing began,” Franken told Robert Litt, the ODNI general counsel. “It’s a step forward, but . . . when it’s ad-hoc transparency, that doesn’t engender trust.”
Franken touted legislation he is proposing to require the government to disclose the number of Americans from whom it is collecting metadata. The panel chairman, Sen. Patrick Leahy, D-Vt., is sponsoring a bill that would restrict the NSA’s ability to collect metadata and increase judicial oversight.
Feinstein warned against legislating sweeping restrictions.
“I think we need to prevent an attack wherever we can,” she said. “That doesn’t mean we can’t make some changes, (but) we would put this nation in jeopardy if we eliminate these programs.”
Deputy Attorney General James Cole, NSA Deputy Director John Inglis and Litt defended the programs’ constitutionality by citing the Foreign Intelligence Surveillance Court oversight.
But former FISA Court Judge James Carr, who also testified, said the court’s oversight is not as balanced as officials make it out to be. He suggested that a public interest representative be added to the court when it is considering government requests for new surveillance programs.
“There were a couple of occasions . . . (when) it would have been useful to have someone speak in opposition to the request,” Carr said.
Currently, only government lawyers can appear before the court or participate in its appeals process.
Meanwhile, Wyden said in a statement that he and Sen. Mark Udall, D-Colo., “spent a significant portion of 2011” pressing U.S. intelligence agencies to provide evidence to back up assertions that the bulk email collection program provided the NSA with intelligence it cannot gain by other means.
The program’s closure showed that the administration “repeatedly made inaccurate statements to Congress” about its “value and effectiveness,” he said, adding that he continues “to be skeptical of claims that the ongoing bulk phone records collection program provides . . . any unique value.”
By Ali Watkins and Jonathan S. Landay
McClatchy Washington Bureau