WASHINGTON -- Government agents may only access a National Security Agency database of all domestic phone calls in the United States when an executive branch official decides there is a "reasonable, articulable suspicion" that a phone number is associated with terrorism, according to a formerly secret court order revealed Wednesday.
An April ruling by the Foreign Intelligence Surveillance Court was declassified by the Obama administration just ahead of a Senate Judiciary Committee hearing into Foreign Intelligence Surveillance Act programs.
The so-called telephone metadata can only be accessed by "authorized personnel who have received appropriate and adequate training," according to the court order. The April 25 order, signed by U.S. District Judge Roger Vinson, served as the basis for a separate order, disclosed by former NSA contractor Edward Snowden, that forced a Verizon subsidiary to turn over its phone logs. That authorization expired on July 19, but has since been renewed.
Sen. Al Franken (D-Minn.) criticized the executive branch for releasing the order just ahead of the Wednesday morning hearing.
"An hour ago, ODNI [Office of the Director of National Intelligence] declassified a FISA court order under Section 215 -- that's a good thing -- but ODNI has known for weeks that this hearing was coming and yet ODNI releases this material just a few minutes before the hearing began," Franken said during the hearing. "You know, again, it's a step forward, but you get the feeling when it's ad hoc transparency, that doesn't engender trust, I don't think."
Robert S. Litt, general counsel for ODNI, testified that there was a discussion within the executive branch on Tuesday about whether they should release the documents the next day.
"It's certainly not a good idea to release things on the morning of the hearing, and I think we came to the conclusion that once we've made the determination that the documents should be declassified, there was no justification for holding them up any longer," Litt said. "We have been thinking about this for some time, and we've been processing this as quickly as we can," he added, calling the process "rather time-consuming."
Sen. Patrick Leahy (D-Vt.), who chairs the Senate Judiciary Committee, said that he was "concerned" Congress was not being given "straightforward answers" about the spying programs and that it wasn't clear the phone records program under Section 215 of the Patriot Act had been effective.
"This bulk collection program has massive privacy implications," Leahy said. "The phone records of all of us in this room reside in an NSA database. I have said repeatedly that just because we have the ability to collect huge amounts of data does not mean that we should be doing so. In fact, it has been reported that the bulk collection of Internet metadata was shut down because it failed to produce meaningful intelligence. We need to take an equally close look at the phone records program. If this program is not effective, it must end. And so far, I am not convinced by what I have seen."
Deputy Attorney General James Cole testified that the 11 judges on the FISA court "are far from a rubber stamp" and "review all of our pleadings thoroughly, they question us, and they don't approve the order until they are satisfied that we have met all statutory and constitutional requirements."
Cole said the Obama administration was "in the process of discussing" the creation of an adversarial process in the FISA court. Under the current system, there is no one to oppose the government's requests before the secret court. "This is certainly part of what we'd like to be talking about to see if that has some utility," Cole said.
Litt testified that he didn't "know of another country in the world that has the degree of judicial supervision of intelligence activities that this country has already." Nonetheless, he said, it would be "entirely appropriate" to build in an adversarial process if that were the best way to ensure intelligence agencies complied with the law.
"But we shouldn't be trying to make this mimic a criminal trial, because it's a very different process," Litt said.
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