For more than a year, the Electronic Frontier Foundation has been in federal courts, fighting to have the 2011 FISA court ruling that found one of the NSA's collection programs unconstitutional declassified. They
declared victory on Wednesday, when the government complied with a federal court ruling and released the
ruling.
According to the newly released, highly redacted ruling, the NSA illegally gathered tens of thousands of Americans' emails under Section 702 of the FISA Amendments Act from 2008 until 2011 when the court halted the program, as many as 56,000 "wholly domestic" communications per year.
The 86-page opinion, which was declassified by U.S. intelligence officials Wednesday, explains why the chief judge of the Foreign Intelligence Surveillance Court ruled the collection method unconstitutional.
“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Judge John D. Bates, then the surveillance court’s chief judge, wrote in his Oct. 3, 2011 opinion.
In the opinion, Bates also expressed deep frustration with the government, saying that it had “disclosed a substantial misrepresentation regarding the scope of a major collection program” three times in less than three years.
That frustration was expressed in a footnote in which Bates also said that in 2009 the court had discovered that its approval of a government interpretation of section 215 of the Patriot Act—that's the authority for the bulk collection of all Americans' phone records, different from the FAA Section 702 considered in this ruling—was substantially flawed. The footnote described that approval as "premised on a flawed depiction" of how the program operated, "buttressed by repeated inaccurate statements in the government's submissions" to the court. He also said that the standards the NSA was using to justify searching phone records databases were "so frequently and systemically violated that it can be fairly said that this critical element of the overall ... regime has never functioned effectively." In other words, in Bates was admitting that the NSA lied to the court, and operated illegally, and the court knew it and the only thing he could do about it was write a footnote in a secret opinion and tell the NSA to stop doing that. Which it may or may not do.
In an interview with reporters following the release of this and other formerly classified documents, Robert S. Litt III, the general counsel for the Office of the Director of the National Intelligence, said "This was not in any respect an intentional or wholesale breach of privacy of American persons." He apparently did not address whether the lying to the FISA Court was intentional.
The release of this information, finally, is a great step forward, but it's only a step. Clearly, the FISA Court and its ability to truly oversee these programs has to be reformed, Congress has to take a much larger role in oversight, and the NSA has to be reined in by both. It has likely done nothing at all nefarious with those tens of thousands of purely domestic communications it obtained illegally, but it has operated as a rogue agency, and has lied to both the court and to Congress. That's not acceptable.
