- By
- SIOBHAN GORMAN
- And
- DEVLIN BARRETT
- CONNECT
They said the violations continued until a judge ordered an overhaul of the program in 2009.
Since the breadth of the phone-records collection came to light through leaks from former NSA contractor Edward Snowden, lawmakers and top U.S. officials have defended the program. They have said that for all queries of the database, the NSA must show a "reasonable articulable suspicion" that the phone number being targeted is associated with a terrorist organization.
Between 2006 and 2009, however, of the 17,835 phone numbers checked against incoming phone records, only about 1,800 were based on that reasonable suspicion standard, officials said.
In a March 2009 order that was declassified Tuesday, Judge Reggie Walton of the Foreign Intelligence Surveillance Court said the government "frequently and systematically violated" the procedures it had said it was following. The judge criticized what he described as "repeated inaccurate statements made in the government's submissions."
The revelations called into question the NSA's ability to run the sweeping domestic surveillance programs it introduced more than 10 years ago in the wake of the 2001 terrorist attacks.
Officials said the violations were inadvertent, because NSA officials didn't understand their own phone-records collection program. Gen. Keith Alexander, the head of the NSA, told the judge in a 2009 legal declaration that "from a technical standpoint, there was no single person who had a complete technical understanding of the [business record] system architecture."
NSA/ReutersThe National Security Agency headquarters in Fort Meade, Md.
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2009 order by Foreign Intelligence Surveillance Court judge to overhaul NSA phone-record surveillance program
Top U.S. officials, including Gen. Alexander, have repeatedly reassured lawmakers and the public that the phone-records program has been carefully executed under oversight from the secret national security court.
"This is not a program where we are out freewheeling it," Gen. Alexander said in June. "It is a well-overseen and a very focused program."
Until Tuesday, officials hadn't described the period in which the program repeatedly violated court orders. They made public the violations as part of a court-ordered release of documents in lawsuits by the Electronic Frontier Foundation and the American Civil Liberties Union.
The release included roughly 1,800 pages of documents, including orders from the secret Foreign Intelligence Surveillance Court and government correspondence with the court.
The NSA violations occurred between 2006, when the phone-records program first came under court supervision, and 2009, when NSA officials told Judge Walton the program had been conducting searches using thousands of phone numbers that didn't meet court standards. Before 2006, the program was run without court supervision.
The program was developed under a provision of the Patriot Act that allows the NSA, through the Federal Bureau of Investigation, to collect business records "relevant to an authorized investigation." The NSA determined that nearly all U.S. phone-call records were "relevant" to its terrorism investigations, because it needed all the calls in order to determine with whom suspects were communicating.
The records, called "metadata," included phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism. The content of the calls isn't obtained under this program.
The NSA used an "alert list" of nearly 18,000 numbers of "counterterrorism interest" to screen phone records on a daily basis and determine which ones it should look at most closely, an intelligence official said. New phone records that had a relationship to those on the alert list were given a higher priority for subsequent possible searches that would be done if NSA could meet the "reasonable articulable suspicion" standard.
When the NSA acknowledged problems in the phone records surveillance program in March 2009, Judge Walton was upset enough to order Justice Department lawyers to intervene and help fix the program, officials said.
It wasn't until September 2009 that the problems were resolved to the judge's satisfaction, officials said. The program was overhauled so that all searches met the court-ordered standard, and the NSA established a new compliance office, which now oversees the phone data and other NSA spy programs.
In the interim, they said, the NSA had to get approval from the court on a case-by-case basis to search its database, though there was an exception allowing immediate searches in emergency cases. Officials said the NSA obtained court approval in specific cases multiple times.
That was a key time period in U.S. counterterrorism efforts, because in August and September of 2009 authorities were chasing a suspected terrorist bomb plotter, Najibullah Zazi, in a plan to detonate bombs aboard the New York City subway system.
Since revelations about the NSA's surveillance programs first emerged in June through Mr. Snowden's leaks to news media, the Obama administration has pointed to the Zazi case as a prime example of how such programs help stop terrorist attacks.
On Tuesday, intelligence officials said they didn't know how the problems in the phone-records program may have affected the Zazi case. They also said they couldn't remember if anyone at the NSA was reassigned or left the agency as a result of the errors.
James Clapper, the director of national intelligence, said the NSA's discovery of the problems with the phone-records program and its reporting to the court show that oversight of the NSA surveillance programs works as designed.
The documents released Tuesday "are a testament to the government's strong commitment to detecting, correcting and reporting mistakes," Mr. Clapper said in a statement. He blamed the errors on the "complexity of the technology."
Write to Siobhan Gorman at [email protected] and Devlin Barrett at [email protected]
