A Secret Court Judge Warned The NSA It Was Close To Breaking The Law -- Then Gave It More Power

General Keith Alexander, Director of the National Security Agency and Commander of the US Cyber Command, speaks during a disc
General Keith Alexander, Director of the National Security Agency and Commander of the US Cyber Command, speaks during a discussion at the Reagan Building October 30, 2013 in Washington, DC. The discussion, sponsored by Bloomberg Government, focus on the costs and benefits of cyber security. AFP PHOTO/Brendan SMIALOWSKI (Photo credit should read BRENDAN SMIALOWSKI/AFP/Getty Images)

The top judge on the secret court that oversees the National Security Agency's surveillance activities in 2010 warned the agency that it could face criminal sanctions if it tried to make use of information it had collected without the necessary court authorization.

The Obama administration had asked permission to continue using surveillance data about Americans' online communications gathered under a troubled program that mined Internet metadata in bulk. But Foreign Intelligence Surveillance Court Presiding Judge John Bates told the government that granting its request was outside his power -- because it was illegal.

"The plain language of the law," Bates wrote in the opinion, produced sometime between June 2010 and October 2011 and declassified on Monday, "makes it a crime for any person, acting under color of law, intentionally to use or disclose information with knowledge or reason to know that the information was obtained through unauthorized electronic surveillance."

The court couldn't simply deem illegal surveillance legal when Congress had prohibited it, he pointed out. But in the same opinion, Bates authorized the NSA to restart its bulk internet metadata collection -- which the agency had suspended for several months -- and allowed for unspecified new NSA collection, citing the assurances of government officials that the program was necessary to prevent terrorism. In other words, Bates found that while he could not retroactively authorize metadata collection, he could expand it going forward.

A section of the Patriot Act authorized the government, with the approval of a surveillance judge, to collect Americans' metadata to investigate terrorism. But just what constitutes metadata, as opposed to what constitutes the content of messages, is a decision that only the secretive Foreign Intelligence Surveillance Court is supposed to make.

The NSA's collection, Bates wrote, went far beyond the categories of metadata the court had approved, and the government had engaged in a "systemic overcollection" of Americans' information.

Which kinds of information the NSA "overcollected" were redacted from the declassified opinion. Still, the document suggests that some of this "metadata" was actually so descriptive that it bordered on exposing the contents of Americans' communications. That kind of intrusive collection is prohibited by law.

Bates further criticized the NSA's repeated mistakes, and the government's lack of explanation for them. "The government has provided no comprehensive explanation of how so substantial an overcollection occurred," Bates wrote. "The most charitable interpretation possible," he added, was that this overreach resulted from "poor management" at the NSA.

Moreover, Bates said the government had repeatedly misrepresented how much data it was collecting to the FISA court. Other problems at the NSA included allowing unauthorized analysts to access bulk telephone and internet metadata, and sharing such data with analysts at the FBI and CIA without first stripping out identifying information on American citizens.

The government's only explanation for the latter error was that sharing the data "seemed appropriate at the time."

Although Bates suggested that continuing to use the metadata the NSA had collected without authorization would violate criminal law, it's not clear whether he was suggesting that the NSA had already done so.

"There’s some ambiguity" in both the internet metadata opinion, and another opinion written Oct. 3, 2011 that concerns the content of communications, ACLU staff attorney Patrick Toomey wrote in an email to HuffPost.

"Most of the discussion is directed at the government’s request to continue using, going forward, data that it gathered in the past, so it’s not clear whether Bates is making findings about the state of mind of government officials as the collection was occurring," Toomey said.

Any decision whether to prosecute individual government officers at the NSA or elsewhere for violating the FISA law's prohibition against using unauthorized electronic surveillance ultimately would have been up to the president, not Judge Bates, said American University law professor Steve Vladeck.

Despite his warnings, Bates did allow the NSA to continue using data it had collected "when it is not known, and there is genuinely no reason to know, that a piece of information was acquired through electronic surveillance that was not authorized." Bates did not spell out what information would be covered by this exception.

"In light of the government's assertions of need, and in heavy reliance on the assurances of the responsible officials, the Court is prepared -- albeit reluctantly -- to grant the government's request" to use some of the data it had overcollected, Bates wrote.

The larger internet metadata collection program, which began without any legal authorization at all under President George W. Bush in 2001, continued until 2011, when the Obama administration shut it down.

An NSA spokesperson declined to comment on the metadata program Thursday, pointing to a blog post from the Office of the Director of National Intelligence's acknowledging that the government had "addressed [Bates's] concerns during that period and, after a careful review, the [Foreign Intelligence Surveillance Court] approved the Government’s application to resume collection on a modified basis."

Less than a year later after it was started up again, the metadata collection program came to an end in 2011. An internal administration review determined that it was not living up to expectations.

In a September statement, Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) said that the "intelligence agencies made statements to both Congress and the Court that significantly exaggerated this program's effectiveness."



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