The National Security Agency for almost three years searched a massive database of Americans’ phone call records attempting to identify potential terrorists in violation of court-approved privacy rules, and the problem went unfixed because no one at the agency had a full technical understanding of how its system worked, according to new documents and senior government officials.
Moreover, it was Justice Department officials who discovered the problem and reported it to the court that oversees surveillance programs, the documents show, undermining assertions by the NSA that self-reporting is part of its culture.
The improper activity went on from May 2006 to January 2009, according to a March 2009 opinion by Judge Reggie B. Walton, who serves on the Foreign Intelligence Surveillance Court.
It was one of more than a dozen documents declassified and released Tuesday in response to lawsuits by civil liberties groups and at the direction of President Obama in the wake of the June disclosure by former NSA contractor Edward J. Snowden of the massive phone records collection.
“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 James R. Clapper, the director of national intelligence.
A strong rebuke of the NSA by the court comes less than a month after the Office of the Director of National Intelligence released a highly critical FISA court opinion that took the agency to task for its operation of a separate surveillance program. Taken together, the documents released by the office over the past month paint a troubling picture of an agency that has sought and won far-reaching surveillance powers to run complex domestic data collection without anyone having full technical understanding of the efforts, and that has repeatedly misrepresented the programs’ scope to its court overseer.
Such revelations call into question the effectiveness of an oversight program that depends on accurate disclosure by the NSA to a court that acts in secret and says it lacks the resources to verifyindependently the agency’s assertions.
“It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses” the phone data, Walton wrote.
“This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions,” he continued.
Privacy procedures “have been so frequently and systemically violated that it can fairly be said that this critical element of the overall [phone records] regime has never fully functioned effectively,” he said.