U.S. Declassifies Court Order Allowing Record Collection

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Top intelligence and law enforcement officials have made repeated trips to Capitol Hill, participating in public hearings and in classified closed-door briefings, to defend the data collection initiatives. Close

Top intelligence and law enforcement officials have made repeated trips to Capitol... Read More

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Photographer: Mark Wilson/Getty Images

Top intelligence and law enforcement officials have made repeated trips to Capitol Hill, participating in public hearings and in classified closed-door briefings, to defend the data collection initiatives.

President Barack Obama’s administration released previously classified documents on the government’s collection of millions of U.S. phone records, including a secret order that authorized and set limits for the program.

The Office of the Director of National Intelligence released today an April 25 court document, along with two briefing papers provided to Congress that describe the program’s use. Some text is redacted.

“We welcome a public debate about how best to safeguard both our national security and the privacy of our citizens,” Deputy Attorney General James Cole said in testimony before the Senate Judiciary Committee today. “We will be considering in the coming days and weeks further steps to declassify information and help facilitate that debate.”

The government’s disclosures shed new light on the scope of tools utilized by intelligence and law-enforcement agencies after the Sept. 11, 2001, terrorist attacks. Each of the documents calls the programs critical to halting future plots and presents the methodology and restrictions in place to guide their use.

They don’t include the legal rationale for the programs which, along with the large-scale collection, has raised concerns from lawmakers in both parties.

“If this program is not effective, it has to end,” Senator Patrick Leahy, a Vermont Democrat and the chairman of the committee, said today. “So far I’m not convinced by what I’ve seen.”

‘Among Us’

Top intelligence and law-enforcement officials are defending the data-collection programs from criticism -- and proposals for legislative curbs -- since their disclosure by former intelligence contractor Edward Snowden.

U.S. agencies are also facing pressure from technology companies including Yahoo! Inc., Google Inc. (GOOG), Microsoft Corp. (MSFT) and Facebook Inc. (FB), to allow the disclosure of the role the private sector plays in the classified programs.

General Keith Alexander, the director of the NSA, said at a conference in Las Vegas today that intelligence agencies need to maintain their access to the data.

“Terrorists use our communications,” Alexander said in a speech at the Black Hat annual computer security conference. “They live among us.”

Internet Surveillance

Snowden, who’s currently in the Moscow airport and facing charges of espionage and theft in the U.S., also disclosed the existence of an Internet surveillance program, known as Prism, that collects information on foreign citizens believed to be outside the U.S. and involved with terrorist organizations.

His disclosures, mostly released by the Washington Post and The Guardian, have restarted a debate that had subsided in the wake of President George W. Bush’s administration.

The Guardian today reported on another program disclosed by Snowden, called XKeyscore, which the organization said allowed NSA analysts to search databases containing e-mails, online chats and the browsing histories of individuals.

Lawmakers have zeroed in on the program that gathers millions of phone records from U.S. citizens into government computers, authorized by the Foreign Intelligence Surveillance Court under the Patriot Act. The court, which operates in secret, has come under scrutiny for being too willing to approve intelligence-agency requests.

Senator Dianne Feinstein, a California Democrat and chairman of the Intelligence Committee, said today she would consider including curbs on the phone-data program in the annual intelligence authorization bill.

Legislation Considered

Those changes, according to Feinstein, would include the requirement of annual reports on the number of warrants obtained by the FBI to collect the content of calls, the number of U.S. phone numbers submitted as queries to a NSA database and the number of times per year a private company is required to provide data as part of the program.

Top intelligence and law-enforcement officials have made repeated trips to Capitol Hill, participating in public hearings and in classified closed-door briefings, to defend the initiatives.

James Clapper, the director of national intelligence, said in a June 26 letter to senators that the phone record-collection program began in 2006 and is reauthorized by the the Foreign Surveillance Intelligence Court every 90 days. Clapper pointed to congressional reauthorization of the law permitting the collection, as well as its oversight, in the letter.

Congress Briefed

Included in the information declassified today were briefing materials provided by the Justice Department to lawmakers on the House and Senate Intelligence and Judiciary committees that described the phone-record program.

The materials, provided in 2009 and 2011, consist of five pages that outline the use and restrictions imposed on the program. They also include the request that all members of Congress have an opportunity to access the contents in a classified setting over a limited period of time.

The declassified documents include the outlines of a broader effort to collect electronic communications of U.S. citizens under the program -- a practice that U.S. officials say ended in 2011.

Those programs “operate on a very large scale,” according to the documents provided to lawmakers in February 2011.

‘Compliance Problems’

The briefing materials include the acknowledgment that “there have been a number of technical compliance problems and human implementation in these two bulk programs.” The briefing said NSA and the surveillance court found no “intentional or bad-faith violations.”

The officials’ efforts so far have failed to quell lawmakers’ concerns that the programs undermine individual liberty, including privacy rights.

While lawmakers today said they appreciated the latest declassification effort, they also criticized its timing and the forced nature of the debate over the programs.

“Ad-hoc transparency doesn’t engender trust,” Senator Al Franken, a Minnesota Democrat, said during today’s hearing.

Democratic Senators Mark Udall of Colorado and Ron Wyden of Oregon have been among the programs’ most vocal critics. They’ve been joined by lawmakers from both parties.

Curtailment Urged

The two senators have called into question the testimony of intelligence officials that the phone-record program has been an integral part of halting or disrupting terror plots. They have called on Obama’s administration to end the program while proposing legislation to curtail its use.

A House proposal to defund the NSA programs came seven votes short of passing July 24.

Democratic and Republican lawmakers across the political spectrum now say they’re drawing plans to restrict data collection, declassify court orders allowing the spying and change the way the court’s judges are appointed. The 17-page order released today was signed by Judge Roger Vinson.

Underpinning efforts to curb the NSA programs is a shift in public opinion about government surveillance activities fashioned after the Sept. 11 attacks. A July 17-21 Pew Research Center survey found 47 percent of adults polled have greater concern over the reach of U.S. anti-terrorism policies, while 35 percent were concerned they didn’t go far enough.

That marked the first time civil liberties concerns have trumped protection from terrorism since the organization began asking the question in 2004.

Transparency Sought

While House Democratic Leader Nancy Pelosi of California voted against the effort to defund the programs, she subsequently asked the White House to seek changes. Pelosi and 153 other House Democrats sent Obama a letter July 26, urging curbs that would “preserve American’s privacy and civil liberties while protecting our national security.”

Top lawmakers on the House and Senate Judiciary and Intelligence committees, which have oversight of the programs, are working on proposals to curb or provide more transparency to the NSA programs.

Representative Jim Sensenbrenner, a Wisconsin Republican who sponsored the Patriot Act in 2001, and Democratic Representative Zoe Lofgren of California are working together on legislation to allow businesses to disclose their involvement with surveillance orders.

A separate Sensenbrenner bill would limit collection of phone data to targets of a federal terrorism investigation and put new restrictions on the surveillance court, said Ben Miller, a Sensenbrenner spokesman.

Representative Adam Schiff, a California Democrat and member of the House Intelligence Committee, has introduced two measures since the Snowden revelations that would revamp the court. One would change the selection process for the court’s judges, taking it out of the hands of the U.S. Supreme Court Chief Justice to allow White House input and Senate confirmation. The other seeks to declassify many of the court’s secret rulings.

To contact the reporter on this story: Phil Mattingly in Washington at pmattingly@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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