Documents from a secret U.S. court show that the National Security Agency may retain telephone and e-mail records on American citizens and legal residents under certain conditions, according to two newspaper reports.
The classified documents from the Foreign Intelligence Surveillance Court detail procedures the NSA must follow when monitoring of phone calls and e-mails by foreigners outside the U.S. scoops up the Americans’ communications, according to reports by the Washington Post and U.K.-based Guardian.
The court papers obtained by the Post and the Guardian mark the latest revelations about U.S. government surveillance programs aimed at thwarting terrorist plots and other national security threats. Exposure of the programs in media reports earlier this month has reignited a debate over the balance between safeguarding the public from terror attacks and protecting traditional U.S. civil liberties.
“These documents show indisputably that the legal framework under which the NSA operates is far too feeble, that existing oversight mechanisms are ineffective, and that the government’s surveillance policies now present a serious and ongoing threat to our constitutional rights,” Alex Abdo, an American Civil Liberties Union lawyer, said in a statement.
Since the programs were exposed, President Barack Obama’s administration has defended the surveillance techniques as legal, limited in scope, and conducted under the supervision of a federal court and members of Congress.
The documents obtained by the Post and the Guardian provide details on the rules governing when data collected on American citizens and legal residents must be destroyed and the measures analysts must take to ensure the targets of the surveillance are outside the U.S.
A six-page document signed by U.S. Attorney General Eric Holder on July 15, 2010, said that procedures have been set to prevent the “intentional acquisition” of communications data from inside the U.S., the Post reported yesterday.
Still, policies approved by the Foreign Intelligence Surveillance Court let the NSA keep or use data containing inadvertently acquired information on U.S. persons for as long as five years, the Guardian reported. Circumstances that permit keeping or using such data include when the information pertains to criminal activity or intelligence matters.
The documents also suggest that NSA analysts have leeway in determining whether a targeted individual is outside the U.S. For cases in which the agency has no specific information about a person’s location, analysts are free to presume the individual was overseas, the Guardian reported, citing one court order posted on its website.
“In the absence of specific information regarding whether a target is a United States person,” the order cited by the Guardian said, “a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.”
If later it appears that a surveillance target is in the U.S., the Guardian reported, analysts are allowed to scan the content of messages or listen to telephone calls, to determine the person’s location.
Government officials have said the programs seek to minimize the gathering of information on American citizens and legal residents. Still, they have acknowledged that such data might be collected inadvertently in the course of monitoring foreign targets outside the U.S.
During a hearing of the House Intelligence Committee on June 18, Deputy Attorney General James Cole said that data on so-called U.S. persons can be kept only “under limited criteria,” such as a link to foreign intelligence, evidence of criminal activity or information on computer hacking.
“Other than that, we have to get rid of it,” he said. We have to purge it, and we can’t use it.’’
The NSA’s director, Army General Keith Alexander, said at the same hearing that the programs at issue are “limited, focused, and subject to rigorous oversight.”
John Chris Inglis, the NSA’s deputy director, told the committee that the agency approved counterterrorism inquiries on fewer than 300 phone numbers in 2012.
The programs to monitor telephone call data and Internet activity were exposed by former NSA contract worker Edward Snowden, who fled to Hong Kong before revealing himself as the source. The U.S. Justice Department has opened a criminal investigation into the leak and is expected to pursue Snowden’s extradition.
The Obama administration has confirmed the existence of a program compelling Verizon Communications Inc. (VZ:US) to provide the NSA with customers’ telephone records. It also has confirmed the existence of a separate program, called Prism, that monitors the Internet activity of foreigners believed to be located outside the U.S. and plotting terrorist attacks.
U.S. lawmakers and civil-liberties groups have sought more information on the programs, including whether the initiatives have helped halt terrorist activities on U.S. soil. Obama said in an interview with Charlie Rose aired June 17 on PBS television stations that the intelligence community, at his instruction, is determining “how much of this we can declassify without further compromising the program.”
Obama will meet today with an independent U.S. board created to ensure that government surveillance in the wake of the Sept. 11 terrorist attacks doesn’t violate citizens’ rights, according to a senior administration official.
The meeting will be Obama’s first with the Privacy and Civil Liberties Oversight Board and will cover the recent disclosures of classified information, said the official, who asked not to be identified.
Intelligence officials led by Alexander credited the programs during the House hearing with thwarting more than 50 terrorist plots, including a plan to bomb the New York Stock Exchange. Alexander said Snowden’s leaks have caused “irreversible and significant damage to this nation” while helping U.S. adversaries.
Snowden had worked at the NSA under government contractor Booz Allen Hamilton Holding Corp. (BAH:US), which fired him after his role in disclosing the secrets was revealed. The 30-year-old’s lawyers have been discussing possible asylum in Iceland with advisers to Julian Assange, the founder and publisher of the anti-secrecy WikiLeaks.org website.
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