Here’s Your Checks and Balances: NSA ‘Continually’ and ‘Systematically’ Violated FISA Court Limits

Yesterday evening the Office of the Director of
National Intelligence released another trove of heavily
redacted documents related to NSA mass data gathering and Foreign
Intelligence Surveillance Court (FISC) opinions. The agency acted
in its announcement as though this were an act of magnanimous
behavior by President Barack Obama and not a result of pressure and
lawsuits from privacy groups and information leaked by Edward
Snowden.

Among the releases was the FISC ruling that authorized the
National Security Agency’s effort to collect mass amounts of e-mail
metadata under the George W. Bush administration, an effort that
was ultimately suspended in 2011 (unlike the phone metadata
gathering, which is still going on). Additionally released
documents indicated that the NSA seemed unable to gather metadata
without getting information they weren’t supposed to get, not
matter how many times they’d promise FISC they’d fix the problems.
From the
Associated Press:

According to court records from 2009, after repeated assurances
the NSA would obey the court’s rules, it acknowledged that it had
collected material improperly. In one instance, the government said
its violations were caused by “poor management, lack of involvement
by compliance officials and lack of internal verification
procedures, not by bad faith.” In another case, the NSA said it
improperly collected information due to a typographical error.

The intelligence court judge, U.S. District Judge John D. Bates,
said in the 2009 case that since the government had repeatedly
offered so many assurances despite the problems continuing, “those
responsible for conducting oversight at the NSA had failed to do so
effectively.” Bates called his conclusion “the most charitable
interpretation possible.”

Eileen Sullivan at the Associated Press does not seem afraid to
cast a subtly critical eye of her own. Note the use of the word
“obvious” in this passage:

After the NSA began the bulk collection program in 2006, one NSA
inspector general’s report said rules already in place were
“adequate” and “in several aspects exceed the terms” of what the
Foreign Intelligence Surveillance Court had required. But it
recommended three additional practices be formally adopted. These
included such obvious ideas as not allowing analysts who searched
phone records in the terror database also to approve which numbers
can be searched, and periodically checking the phone numbers that
analysts searched to make sure they had actually been approved.

Spencer Ackerman, who had been reporting on the NSA scandal and
Snowden’s leaks at The Guardian alongside Glenn Greenwald
(and is still doing so there now that Greenwald’s moved on), summed
up the relationship between the NSA and FISC in a tweet:

Read Sullivan’s full report
here. Ackerman’s analysis of the document dump is
here.