NSA engages in smoke-and-mirrors effort
The Partnership for Civil Justice Fund (PCJF) obtained new NSA documents late yesterday afternoon in response to its Freedom of Information Act (FOIA) request made in early June 2013. These documents sent to the PCJF have been posted below alongside an additional 2,000 pages the NSA released simultaneously as responsive to FOIA demands.
The Obama administration decided to declassify many of the documents and release them as part of an effort to counter the demands for change and the wave of public indignation since whistleblower Ed Snowden revealed that the federal government was engaged in a vast spying program targeting the American people and the people of the world.
Within hours of Edward Snowden's courageous revelations about the U.S. government's massive spying program against the people of the United States and the world, the Partnership for Civil Justice Fund sent Freedom of Information Act (FOIA) demands to the National Security Agency (NSA), the Department of Homeland Security (DHS), the Department of Justice (DOJ) and the Federal Bureau of Intelligence (FBI) for documents related to the identification of mass surveillance programs, their scope, operating guidelines and procedures, the retention of data collected through such programs, and internal evaluations attempting to justify the legality and constitutionality of these programs.
The newly released NSA documents include a heavily redacted 87-page secret ruling by the Foreign Intelligence Surveillance Court (FISA) court that approved a program that comprehensively tracked the email communications of the American people starting in the Bush administration.
“The raw volume of the proposed collection is enormous," wrote Judge Colleen Kollar-Kotelly, who was previously the chief judge on the secret surveillance court.
It was Edward Snowden who released the documents showing that Judge Kollar-Kotelly in 2004 declared it lawful for the Bush administration to continue its massive secret spying program that had originally been established in secret.
The new documents redact the date of Judge Kollar-Kotelly’s ruling.
The new documents include an application filed in 2006 by the Bush administration to the secret surveillance court to allow the collection of bulk logs of all domestic phone calls.
The selectively chosen and newly released documents are an effort by the Obama administration and the NSA to convince the public that the spying program is legal, narrowly tailored and operates under judicial oversight.
"This is fundamentally a smoke-and-mirrors effort designed to hide the reality that there is no real oversight, and that the FISA court is not really a court and has no independent capacity to test, challenge or evaluate the veracity of the government’s claims and assertions about its spying program," stated Mara Verheyden-Hilliard, Executive Director of the PCJF.
In August 2013, the National Security Agency notified the Partnership for Civil Justice Fund of the release of another set of previously secret documents in response to our pending public records demands. The documents released in August 2013 reveal that the government lied to the secret court.
The then-Chief of the Foreign Intelligence Surveillance Court Judge John D. Bates, ruling a massive collection of domestic data to be unconstitutional, wrote in 2011: “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." (Declassified "Foreign Intelligence Surveillance Court Memorandum Opinion and Order (J. Bates)," Oct. 3, 2011)
"The U.S. government has lied to this Court. Of course, to even reference this as a 'court' is something of a stretch.Although administered by federal court judges, the FISC does not have the core characteristics of a court; i.e., open hearings, due process and adversarial proceedings," stated Carl Messineo, Legal Director of the PCJF.
Also in August 2013, the current Chief of the FISC, Reggie B. Walton, admitted: "The FISC is forced to rely on the accuracy of the information that is provided to the Court" by the U.S. government. "The FISC does not have the capacity to investigate issues of noncompliance," he continued.
In response to the PCJF's and others' FOIA demands, the NSA published an additional 2,000 pages, which we are reposting here for ease of access
(Reposted from http://IContheRecord.tumblr.com)
Reports to Congress
The Attorney General’s Annual Reports on Requests for Access to Business Records under FISA for Years 2006-2012
April 10, 2009 NSA notification memorandum to SSCI on the status of the on-going NSA-initiated end-to-end review of its bulk telephony metadata programs conducted pursuant to Section 501 of FISA, and bulk electronic communications metadata program conducted pursuant to Section 402 of FISA.
June 29, 2009 NSA notification memorandum to SSCI on the status of the on-going NSA-initiated end-to-end review of its bulk telephony metadata program conducted pursuant to Section 501 of FISA, and bulk electronic communications metadata program conducted pursuant to Section 402 of FISA.
December 1, 2010 NSA memorandum to SSCI explaining that NSA does not acquire cell site location information pursuant to the bulk electronic communications metadata program, and with the exception of a limited sampling for testing purposes, does not acquire such information pursuant to the bulk telephony metadata program.
Production to Congress of a May 23, 2006 Government Memorandum of Law in support of its Application to the FISC for authorization to conduct bulk telephony metadata collection under Section501 of FISA. Included with the Memorandum of Law is a copy of United States Signals Intelligence Directive 18 (USSID 18), which prescribes policies and procedures, and assigns responsibilities, to ensure that NSA’s signals intelligence activities are conducted in a manner that is appropriate under the Fourth Amendment to the Constitution.
April 27, 2005 Prepared Testimony from Alberto R. Gonzales, Attorney General of the United States, and Robert S. Mueller, III, Federal Bureau of Investigation, United States Department of Justice Before the Select Committee on Intelligence discussing the government’s use of USA PATRIOT Act authorities in combating international terrorism.
FISC Submissions, Opinions and Orders
Opinion of the FISC granting the Government’s application seeking the collection of bulk electronic communications metadata pursuant to Section 402 of FISA, the Pen Register and Trap and Trace (PR/TT) provision.
Opinion of the FISC granting the Government’s application seeking to re-instate NSA’s bulk electronic communications metadata program following the Government’s suspension of the program for several months to address compliance issues identified by the Government and brought to the Court’s attention.
Order and Supplemental Order of the FISC in response to the Government’s reporting of a compliance incident related to NSA’s dissemination of certain query results discovered during NSA’s end-to-end review of its bulk telephony metadata program, and ordering the Government to report on a weekly basis, any disseminations of information from that program outside of NSA and provide further explanation of the incident in its final report upon completion of the end-to-end review.
July 17, 2006 Court-ordered NSA Inspector General and General Counsel report on the adequacy of the management controls for the processing and dissemination of U.S. person information collected under NSA’s bulk telephony metadata program. The report finds that although the NSA-designed management controls governing the processing, dissemination, security, and oversight of telephony metadata and U.S. person information are adequate, several aspects exceed the terms of the Court’s Order, and proposes additional controls to enhance the protection of US person information.
August 17, 2006 NSA Presentation for the FISC regarding NSA’s bulk telephony metadata program pursuant to Section 501 of FISA, and notification of two compliance issues concerning the collection.
September 1, 2009 NSA Presentation for the FISC regarding NSA’s bulk telephony metadata program pursuant to Section 501 of FISA for the purpose of demonstrating NSA’s compliance with the Court’s Orders, and NSA’s operational use of the bulk telephony metadata program in its counterterrorism missions while appropriately protecting privacy.
September 5, 2006 Cover filing submission to the FISC of the standard minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of information received by FBI pursuant to Section 501 of FISA.
May 8, 2009 Government Memorandum to the FISC providing preliminary notice of a compliance incident identified during the ongoing NSA-initiated end-to-end review of NSA’s bulk telephony metadata program under Section 501 of FISA.
July 20, 2009 Order of the FISC approving the Government’s request for authorization to provide the application and orders in docket number BR 06-05 to congressional committees consistent with the Government’s congressional reporting requirements.
NSA Internal Procedures, Guidance, and Training Materials
United States Signals Intelligence Directive 18 (USSID 18) dated July 27, 1993, which prescribes policies and procedures designed to ensure that NSA’s missions and functions are conducted as authorized by law in a manner that is consistent with the Fourth Amendment to the Constitution. The directive sets forth the minimization policies and procedures regarding NSA’s SIGINT activities, including the rules for the collection, retention, and dissemination of information about U.S. persons.
United States Signals Intelligence Directive 18 (USSID 18) dated January 25, 2011, which prescribes policies and procedures designed to ensure that NSA’s missions and functions are conducted as authorized by law in a manner that is consistent with the Fourth Amendment to the Constitution. The directive sets forth the minimization policies and procedures regarding NSA’s SIGINT activities, including the rules for the collection, retention, and dissemination of information about U.S. persons.
Undated PowerPoint slide describing the requirements for verifying that only metadata, and not content, is collected consistent with Court order.
Undated NSA summary of requirements for the collection of bulk telephony metadata under Section 501 of FISA
January 8, 2007 NSA web—based training slides on NSA’s bulk telephony metadata program pursuant to Section 501 of FISA. Topics include: 1) Court-ordered requirements; 2) the reasonable articulable suspicion (RAS) standard; 3) First Amendment considerations; and 4) Minimization procedures governing the accessing, sharing, retention, and dissemination of information.
January 8, 2007 Interim Competency Test for NSA analysts on legal and compliance issues concerning queries of bulk telephony metadata acquired by NSA pursuant to Section 501 of FISA.
January 8, 2007 NSA PowerPoint presentation, designed for use by NSA personnel with access to the bulk telephony metadata acquired by NSA pursuant to Section 501 of FISA, for purposes of performing analytical functions, including:
(1) Court-ordered requirements;
(2) The reasonable articulable suspicion (RAS) standard;
(3) First Amendment considerations; and
(4) Minimization procedures governing the accessing, sharing, retention, and dissemination of information.
August 2009 NSA Cryptological School Course on Legal, Compliance, and Minimization Procedures. These course materials, designed for NSA personnel provided access to bulk telephony and electronic communications metadata acquired pursuant to Section 501 of FISA and Section 402 of FISA respectively, include:
(1) Background on constitutional constraints under the Fourth Amendment for NSA collection activities;
(2) Legal framework and applicable standards for collection, retention, dissemination of information under FISA and Executive Order 12333;
(3) Guidance on collection, processing, retention, and dissemination of information under United States Signals Intelligence Directive 18 (USSID 18); and
(4) Oversight and compliance issues relating to access and use of SIGINT databases and information.
August 29, 2008 NSA memorandum providing guidance on NSA policy as to the applicable legal standards for querying bulk telephony metadata acquired pursuant to Section 501 of FISA, and bulk electronic communications metadata acquired pursuant to Section 402 of FISA.
September 2008 Attorney General’s Guidelines for Domestic FBI Operations, which establishes the framework for the use of authorities and investigative methods to protect the United States from terrorism and other threats to the national security, and to further United States foreign intelligence objectives, in a manner consistent with the Constitution and laws of the United States.
NSA Core Intelligence Oversight Training materials relating to NSA signals intelligence collection activities, including:
(1) Executive Order 12333;
(2) December 1982 DOD Procedures Governing the Activities of DOD Intelligence Components That Affect United States Persons (DoD 5240 1-R);
(3) NSA/Central Security Service (CSS) Policy 1-23, Procedures Governing NSA/CSS Activities that Affect U.S. Persons, which establishes procedures and assigns responsibilities to ensure that the signals intelligence and information assurance missions of NSA and the Central Security Service are conducted in a manner consistent with the privacy rights of U.S. persons as required by law, executive orders, DOD policies and instructions, and internal policy; and
(4) DoD Guidance for Reporting Questionable Intelligence Activities and Significant or Highly Sensitive Matters (DTM 08-052).
2011 NSA Course Materials regarding NSA’s bulk telephony metadata program pursuant to Section 501 of FISA, and NSA’s bulk electronic communications metadata program pursuant to Section 402 of FISA. These materials contrast the differences between the authorities granted for the two programs, detail the limitations on accuse, use, and retention of information collected under these two programs, and explain the role of the two programs in the context of the broader set of NSA’s SIGINT authorities.