By Paul Elias
SAN FRANCISCO: U.S. officials for nearly three years accessed data on thousands of domestic phone numbers they shouldn’t have and then misrepresented their actions to a secret spy court to reauthorize the government’s surveillance program, documents released Tuesday show.
The government’s explanation points to a surveillance infrastructure with such incredible power that even the National Security Agency doesn’t fully know how to properly use it: Officials told a judge in 2009 that the system is so large and complicated that “there was no single person who had a complete technical understanding” of it.
The documents, which the Obama administration was compelled to release as part of a lawsuit by a civil liberties group, show that National Security Agency analysts routinely exceeded their mission to track only phone numbers with reasonable connections to terrorism.
Officials said that the complexity of the system — and a misunderstanding of the laws, court orders and internal policies controlling analysts’ actions — contributed to the abuses. There’s no evidence that the NSA intentionally used its surveillance powers to spy on Americans for political purposes, a fear of many critics who recall the FBI’s intrusive surveillance of civil rights leaders and protesters in the 1960s.
“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 Director of National Intelligence James Clapper. “As demonstrated in these documents, once compliance incidents were discovered in the telephony metadata collection program, additional checks, balances and safeguards were developed to help prevent future instances of noncompliance.”
The Obama administration had conceded earlier that, when it secretly began gathering Americans’ phone and Internet records in 2006, it scooped up more domestic phone calls and emails than Congress or a court authorized. But many details of the program’s abuse were not known until Tuesday.
In a sweeping violation of court-imposed surveillance rules that went on daily between 2006 and 2009, the documents show the NSA tapped the bulk telephone records and compared them with thousands of others without “reasonable, articulable suspicion,” the required legal standard.
The NSA told the Foreign Intelligence Surveillance Court it misunderstood restrictions on accessing data once it was archived, but Judge Reggie B. Walton wrote in a March 2009 order that such an interpretation of the court’s orders “strains credulity.” He was so fed up with the government’s overreaching that he threatened to shutter the surveillance program.
After discovering government officials had been accessing domestic phone records without a sufficient connection to terrorism for nearly three years, the judge said in a blistering opinion that he had “lost confidence” in officials’ ability to legally operate the program.
Walton noted, for instance, that just 1,935 phone numbers out of 17,835 on a list investigators were working with in early 2009 met the legal standard.
The judge ordered the NSA to conduct an “end-to-end” review of its processes and policies while also ordering closer monitoring of its activities.
Later in 2009, a Justice Department lawyer reported to the spy court a “likely violation” of NSA surveillance rules. The lawyer said that in some cases, it appeared the NSA was distributing the sensitive phone records by email to as many as 189 analysts, but only 53 were approved by the spy court to see them.
Walton also noted that sometimes a U.S. phone number would be reassigned by a phone company, and in such cases the NSA would scrutinize the records of an innocent customer.