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Documents show NSA repeatedly broke its own rules, court orders

Published November 19, 2013 7:02 pm

Privacy • Lawyers says data collection problems are similar to troubled health care website.
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Washington • The National Security Agency repeatedly violated its own rules and secret federal court orders regulating its immense collection of private Americans' telephone and Internet data and broke pledges to adhere to strict controls, newly declassified documents show.

The disclosures raise serious questions about repeated assurances given by senior U.S. intelligence officials to Congress that NSA collection programs never "willfully violated" the laws and rules that regulate them and that any compliance issues have been due only to unintentional human or technological errors.

For example, in a 2009 ruling denying a request by the agency to "access and use" communications data it wasn't authorized to have, a secret federal court judge criticized the NSA for "longstanding and pervasive violations" of earlier orders restricting the collections.

"Barring any use of the information would provide a strong incentive for the exercise of greater care in this massive collection by the executive branch officials responsible for ensuring compliance with the court's orders and other applicable requirements," wrote Foreign Intelligence Surveillance Court Judge John D. Bates in his 117-page opinion.

In another ruling, the date of which was blacked out, Judge Reggie B. Walton, also on the surveillance court, castigated the NSA after the government disclosed that the agency had made available to intelligence and law enforcement agencies email addresses and other information on Americans without a mandatory review to ensure it was terrorism-related.

Walton strongly suggested that some of the information included the kind of personal data that senior U.S. intelligence officials repeatedly have insisted wasn't collected.

"NSA has generally failed to adhere to special dissemination restrictions originally proposed by the government, repeatedly relied upon by the court . and incorporated into the court's orders (redacted) as binding on NSA," wrote Walton, who added that he was "gravely concerned."

Despite the findings, however, the Foreign Intelligence Surveillance Court allowed the NSA to restart the Internet and telephone data collection programs after they were suspended, albeit with restrictions. The collections began after the Sept. 11, 2001, attacks and were aimed at uncovering terrorist plots involving Americans.

In a statement, Director of National Intelligence James Clapper said that the Internet data collection program was terminated in 2011 after "an examination revealed that the program was no longer meeting the operational expectations that NSA had for it."

Clapper's office released the nearly three dozen documents, totaling almost 2,000 pages, after 8 p.m. Monday.

The materials were heavily redacted, with thick black lines obscuring numerous dates, names and entire paragraphs critical to understanding them. Among the items deleted was what kind of data was being collected and dates that would have shown how long privacy violations persisted.

Clapper asserted that he released the materials at President Barack Obama's behest as part of an ongoing effort to "make public as much information as possible" about top-secret intelligence programs disclosed in leaks by former NSA contractor Edward Snowden. In fact, however, a court had ordered the government release the documents as part of a lawsuit filed by the American Civil Liberties Union and the Electronic Frontier Foundation, a rights group.

"It's amazing that multiple federal judges have excoriated the agency for widespread mismanagement that has led to the violation of untold numbers of Americans' privacy and yet no one has been held accountable," said Trevor Timm, an Electronic Frontier Foundation policy analyst.

Robert Litt, the intelligence community's top lawyer, on Tuesday blamed the violations on "complicated technology systems" that "frequently don't work" as expected.

Speaking at Georgetown University, Litt compared the problems created by the massive amounts of information the NSA sweeps up and processes to the snafus with the administration's health care website.

"Using the word 'abuse' in the context of the operation of the surveillance program is a little bit like saying that the Department of Health and Human Services is abusing people because of the fact that the Obamacare websites don't work properly," said Litt, the general counsel in the Office of the Director of National Intelligence. "They are complicated."


Among the documents released on Monday were orders and opinions issued by the Foreign Intelligence Surveillance Court, a secret federal judicial panel set up to ensure that the NSA's communications collection programs don't violate the rights of Americans. The materials also included a key NSA policy directive, training materials and internal guidance, and reports to Congress.

The Obama administration has been under pressure from some lawmakers and civil liberties and human rights groups to disclose more information about the NSA's collection of the "metadata" of tens of millions of Americans' daily telephone and Internet communications. Metadata comprises information such telephone numbers called, call locations and email recipients, but not individual identities or the content of the communications.

The government repeatedly has insisted that the metadata collection programs adhere to the law and are crucial to unearthing threats against the United States by al-Qaida and other terrorist groups.


©2013 McClatchy Washington Bureau

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