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In response to lawsuits from the Electronic Frontier Foundation and the ACLU, the government released more than a dozen previously secret legal filings and court opinions from Tuesday, revealing once again illegal domestic surveillance by the NSA. The government has a novel defense for this one: ineptitude.
National Security Agency personnel regularly searched call tracking data using thousands of numbers that had not been vetted in accordance with court-ordered procedures, according to previously secret legal filings and court opinions released by the Obama administration Tuesday.
The agency also falsely certified to the Foreign Intelligence Surveillance Court that analysts and technicians were complying with the court’s insistence that searches only be done with numbers that had a “reasonable, articulable suspicion” of terrorism, according to a senior intelligence official who briefed reporters prior to release of the documents .
The unauthorized searches went on for about three years until they were discovered in March 2009.
An internal inquiry into the misstatements also found that no one at the NSA understood how the entire call-tracking program worked. “There was nobody at NSA who really had a full idea of how the program was operating at the time,” said the official, who spoke on condition of anonymity.
Right. They didn't know how it worked, but used it for three years anyway, illegally, without bothering to figure out how it worked. At issue here is the use of an "alert list," a list of "phone numbers of interest" that the agency queried every day as new data came into their phone records database. The court had told the agency that they could only query numbers that had "reasonable articulable suspicion (RAS)" of being involved in terrorism. The NSA, however, interpreted this to mean that could query all of the records in order to find something suspicious to the court to get permission. Or, as Trevor Timm at EFF says, " they were conducting suspicionless searches to obtain the suspicion the FISA court required to conduct searches."
These "compliance incidents," as DNI James Clapper likes to call them, happened on a daily basis until brought to a halt in 2009. The NSA says it "discovered" the incidents and immediately took the issue to the court. Reggie B. Walton, a judge on the Foreign Intelligence Surveillance Court, did not appreciate this explanation, saying in his March 2009 opinion it "strains credulity."
“The court finds that the government’s failure to ensure that responsible officials adequately understood the NSA’s alert list process, and to accurately report its implementation to the court, has prevented for more than two years both the government and the FISC from taking steps to remedy daily violations,” Walton wrote.
This set of documents demonstrates the court's basic inability to adequately oversee the activities of an agency that seems determined to figure out ways to flout the law, and that can only make decisions based on the information the NSA gives it. Since the NSA seems perfectly willing to lie, whether to the court or to Congress, it's time for reform.
Originally posted to Joan McCarter on Tue Sep 10, 2013 at 03:54 PM PDT.