FISA Judges Slammed the NSA for Knowingly Violating Court Rules

A heap of court documents released last night reveal—once again—that the NSA was knowingly acting outside its legal bounds while listening in on millions of Americans' private phone calls and online messages.

The Office of the Director of National Intelligence published some 1,000 pages of records from the secretive Foreign Intelligence Surveillance Court (FISC) in 2009, including the original document approving the agency's sweeping surveillance program.

The document dump, though heavily censored, was in response to lawsuits from civil rights groups and an executive order from President Obama in June requesting that the intelligence community make public as much information as possible, while protecting national security.

The files include statements from two FISC judges slamming the government for overstepping its power and ignoring privacy protections put in place by the court. The files reveal that the NSA knowingly committed "longstanding and pervasive violations” of the legal guidelines, and charged forward with the operation nevertheless. Following similar admissions in September, it's becoming ever clearer that even with the aid of a secret court and vague laws, the NSA misled the court about the scope of its activities in order to get approval.

Judge Colleen Kollar-Kotelly wrote that she was aware the federal phone-tapping operation would collect an "enormous" amount of information on Americans; the specific amount was redacted from the document. In a far cry from simply rubber-stamping the program—as has been suggested before—the opinion reveals the judge was seriously reluctant to approve the sweeping data collection, but eventually allowed it to continue, provided certain conditions were met to protect citizens' privacy.

Meanwhile, a second court opinion from US District Judge John Bates, who succeeded Kollar-Kotelly, suggests the NSA knowingly violated those court-ordered privacy protections, and abused its powers in an effort to collect and store massive amounts of online data from Americans with the justification of spotting terrorists and the people communicating with them. “NSA exceeded the scope of authorized acquisition continuously,” Bates wrote, describing “systemic overcollection” throughout the spying program.

In an opinion he called “charitable,” Bates criticized the government for failing to adhere to court guidelines. He wrote that the NSA shared data on Americans, including email metadata, with other intelligence agencies like the FBI and CIA. He wrote that "virtually every" shared record included information that "had not been authorized for collection." The files also show the NSA was building a database of cell phone locations, actively collecting location data from millions of calls.

The NSA itself acknowledged that it had gone too far in mining Americans' data. The newly released records include a memo from the NSA to Congress admitting the spy agency failed to abide by court rules put in place to minimize the intrusive nature of the program. According to the memo, the FISA court expressed "grave concern over the lack of apparent NSA compliance with the Court ordered minimization procedures."

Director of National Intelligence James Clapper wrote yesterday on the intelligence community's Tumblr blog that the latest document release shows good faith on the part of the NSA to report improperly collected or shared records to the secret court and Congress, so procedures could be tweaked accordingly.

However, this isn't the first time files have revealed evidence that the secret court signed off on constitutionally questionable government requests. Another 2009 court opinion, released by Clapper in September, also blasted the NSA for over-asserting its powers of surveillance, arguably to the extent of breaking the law.

That lack of oversight on the intelligence court is why the Electronic Privacy Information Center (EPIC) took its lawsuit against NSA spying directly to the US Supreme Court. But in a win for the administration, the nation's highest court refused to consider that case yesterday, without comment.