Top secret documents reportedly show the judges monitoring the National Security Agency have essentially given up their oversight role and are letting the agency decide for itself when to use information it has collected on Americans.
The Guardian is reporting the documents it has reviewed show judges have signed off on broad orders allowing the NSA to use information “inadvertently” collected from domestic communications without a warrant.
The paper published two documents submitted to the Foreign Intelligence Surveillance Court (FISA) court by Attorney General Eric Holder on July 29, 2009 detailing the procedures the NSA is to follow in order to minimize the collection of data on U.S. citizens.
But the loopholes are so broad the NSA can still collect domestic communications and use them for any number of reasons.
The documents reportedly show the NSA’s own analysts have the power to decide who to target for surveillance without going to the courts or even their superiors.
The guidelines are supposed to provide procedures for guarding Americans’ privacy but they also give the NSA the latitude to keep information obtained by surveillance under certain conditions.
That includes when the information contains “significant foreign intelligence”, evidence of a crime, a threat to harm people or property or is believed be relevant to cybersecurity.
The classified documents also show the NSA’s own guidelines allow analysts to collect and keep the contents of phone calls and emails of American citizens and legal residents under a “wide range of circumstances,” according to the Washington Post.
President Obama claimed the NSA does not look at the contents of emails and phone calls unless it goes to a FISA judge and obtains a warrant.
He said the NSA activities “do not involve listening to people’s phone calls, do not involve reading the e-mails of U.S. citizens or U.S. residents, absent further action by a federal court, that is entirely consistent with what we would do, for example, in a criminal investigation.”
But, as WND reported last week, a key Democrat revealed the president’s account is not accurate.
Rep. Jerrold Nadler, D-N.Y., said he was “startled” to learn NSA analysts can decide for themselves whether to access the content of a domestic phone call.
Nadler emerged from a secret briefing for members of Congress and said the NSA allows analysts to listen to calls without court authorization.
He said the NSA accesses the contents of phone calls “simply based on an analyst deciding that.”
The legal standards for monitoring phone calls also apply to emails, text messages and instant messages, which means the NSA also may be accessing the content of those communications without court authorization.
Declan McCullagh of CNET broke the story and observed, “[I]t also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.”
Additionally, over the weekend the Post disclosed the existence of NUCLEON, a top-secret NSA program which “intercepts telephone calls and routes the spoken words” to a database.
The paper reported top intelligence officials in Obama administration “have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as NUCLEON”.
A FISA warrant is technically required to intentionally target the communications of American citizens or people inside the U.S.
When the NSA does get a warrant from the FISA court it can resemble a blank check.
A warrant obtained by the Guardian was only one-paragraph long and did not contain detailed legal rulings or explanations.
Signed by a FISA judge in 2010, it declared “the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.”
Those procedures let analysts decide for themselves if a person is located overseas, if the agency has no specific information on the target’s location.
The NSA is supposed to use a variety of resources including IP addresses, public information and information from other agencies to determine if the potential target is located outside the U.S.
But, even if it later turns out the target was located in the U.S., analysts are still permitted to listen to calls and look at messages to verify the location.
And warrants aren’t even used to obtain the bulk of the data collected.
The reason the discretion of the NSA analysts is so broad seems to stem from Section 702 of the FISA Amendments Act (FAA), which was renewed for five years last December.
It allows the NSA to collect large scale data from any country, as long as the target is believed to be overseas.
It is that broad authority the NSA uses in the PRISM program to obtain massive amounts of data from internet providers.
It also appears to explain why those companies have claimed they have turned over online content only pursuant to a court order.
They appear to be referring to the broad authorization of the FISA Amendment Act, not individualized warrants for specific individuals issued by the FISA court.
The NSA reportedly uses the FAA to compel telephone and internet companies to turn over the communications of anyone it chooses.
The Guardian reports, “The FISA court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.”
A former intelligence analyst says those the government has spied on include high-ranking military officials, lawmakers and diplomats…and even the future president.
“They went after – and I know this because I had my hands literally on the paperwork for these sort of things – they went after high-ranking military officers; they went after members of Congress, both Senate and the House, especially on the intelligence committees and on the armed services committees,” Tice told Boiling Frog Post News.
“But they went after other ones, too. They went after lawyers and law firms. All kinds of – heaps of lawyers and law firms. They went after judges. One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand. Two are former FISA court judges. They went after State Department officials. They went after people in the executive service that were part of the White House–their own people,” he claimed.
Tice was the key source in a New York Times report in 2005 exposing the Bush administration’s warrantless wiretapping of international communications in the United States.
The Bush administration insisted it was on a small scale and denied Tice’s claims it was gathering data on millions of Americans.
LAWYERS WANT DATA
Attorneys are beginning to realize all that data collected by the NSA could be a gold mine for their clients.
NBC reports, after years of demanding data from others, the NSA is now facing a demand for its data from lawyers.
An attorney in Florida says evidence collected by the spy agency would prove his client’s innocence.
He is demanding prosecutors produce those records.
The federal government filed a motion Wednesday saying it would refuse to do so because of national security, but legal analysts say the government may be soon facing a flood of requests.
“This opens up a Pandora’s box,” said Mark Rasch, former head of the Department of Justice Computer Crimes Unit.
“You will have situations where the phone companies no longer have the data, but the government does, and lawyers will try to get that data,” he added.
“This is a little bit of an awakening to the government, that you can’t hold massive amounts of personal data with impunity,” said George Washington University privacy law expert Dan Solove.
“Once you do, a lot of obligations and responsibilities kick in. One of the consequences of keeping data is that now you open yourself up to discovery,” he warned.
SURVEILLANCE CAMPAIGN CASH
Six of the biggest companies collecting data for the NSA and other U.S. intelligence agencies are apparently spending a lot of money on politicians.
Employees of those companies have made $16 million dollars in campaign contributions, according to the Washington Examiner.
Most of it, by far, went to Sen. John McCain, R-Ariz., a staunch defender of the spying programs and the ranking member of the Senate Armed Services Committee.
He received more than $420,000.
The biggest contributors were Lockheed-Martin at more than $5 million, Boeing contributed $4.5 million, Northrop Grumman gave $3.3 million, SAIC, Inc. and Accenture each gave more than a million, Computer Sciences Corporation dished out $600,000 and Booz Allen Hamilton (the former employer of PRSIM whistleblower Edward Snowden) gave just over $81,000.
All of those companies have contracts with the Department of Defense.
SPY DATA DOUBTED
Senators and civil rights advocates are questioning whether the NSA’s massive spying program is making Americans any safer.
The Obama administration recently declassified details on terrorism investigations in order to justify the program.
But, those familiar with the four cases made public say the domestic data gathered by the NSA did not play the crucial role officials claim it did.
“We have yet to see any evidence that the bulk phone records collection program has provided any otherwise unobtainable intelligence,” Sens. Ron Wyden, D-Ore., and Mark Udall, D-Colo., wrote in a joint statement.
“It is highly doubtful that these [NSA collection] programs played the kind of central role in these cases that officials have said,” said Michael German, an ACLU lawyer and former undercover FBI agent.
At a rare public hearing this week, intelligence officials told a congressional committee that intelligence from the NSA had foiled more than 50 terrorist plots.