The fallout from documents leaked to the media by Edward Snowden last spring continued this week, as the National Security Agency released over 1,000 pages of previously classified documents showing that it repeatedly violated surveillance rules, and that those violations had been reported to a U.S. intelligence court, which provided inconsistent oversight that often failed to stop many of the spy agency's transgressions.
The documents, released late on Monday, also show that the NSA promised to institute additional safety measures to prevent similar missteps.
After repeated assurances the NSA would obey the court's rules, it acknowledged that it had collected material improperly, according to court records from 2009. In one instance, the government said its violations were caused by "poor management, lack of involvement by compliance officials and lack of internal verification procedures, not by bad faith." In another case, the NSA said it improperly collected information due to a typographical error.
The intelligence court judge, U.S. District Judge John D. Bates, said in the 2009 case that because problems continued after the NSA promised to reform its practices, "those responsible for conducting oversight at the NSA had failed to do so effectively." Bates called his conclusion "the most charitable interpretation possible."
The Obama administration published the heavily censored files Monday night as part of an ongoing civil liberties lawsuit challenging the constitutionality of the government's collection of phone records, which the White House has said is important to countering terrorism. The files were so heavily censored that one of the two justifications for the government to search through Americans' phone records was blacked out.
In the new disclosures, some files were declassified ostensibly to show that even when NSA employees collected records improperly, or improperly shared material among themselves, those problems were reported to the intelligence court and new procedures were put in place to prevent them from happening again.
Similar documents about the U.S. collecting phone records were previously declassified and published in response to a lawsuit filed by the Electronic Frontier Foundation, and the Obama administration has revealed others to convince Congress to allow it to continue collecting the phone records.
After the NSA began the bulk collection program in 2006, one NSA inspector general's report said rules already in place were "adequate" and "in several aspects exceed the terms" of what the Foreign Intelligence Surveillance Court had required. But it recommended three additional practices be formally adopted. These included not allowing analysts who searched phone records in the terror database also to approve which numbers can be searched, and periodically checking the phone numbers that analysts searched to make sure they had actually been approved.
Despite assurances in 2006 that rules were adequate, problems surfaced in 2009 that were so serious that the intelligence court temporarily shut down the surveillance program.
The documents also included training materials for NSA analysts, who were warned that they should only search the database of all phone records for numbers they suspected were associated with terrorists: "Analysts are NOT free to use a telephone selector based on a hunch or guess," according to a 2007 training presentation. It added that the NSA's legal standard for picking a phone number for a terror suspect required "some minimal level of objective justification."
The training slides noted that the government shouldn't snoop on the phone records of Americans whose only suspicious behaviors were protected by the First Amendment, such as speaking or writing in opposition to the U.S. government, worshiping at a mosque or working as a journalist.
"A telephone selector believed to be used by a U.S. person shall not be regarded as associated with (censored) solely on the basis of activities protected by the First Amendment," it said.
Soon after the documents were released, a Norwegian newspaper published new revelations based on Snowden’s leaks showing that the NSA spied or helped Norway’s government spy on millions of Norwegian citizens’ phone calls.
The report, which was co-authored by ex-Guardian journalist Glenn Greenwald, claimed that the NSA spied on 33 million phone calls in Norway over the period of one month last year.
Norway security officials countered the report, saying it was the Norwegian government, not the U.S., that was spying on the calls. Officials said sometimes the call information was shared with American intelligence officials.
Meanwhile, in a legal victory for the NSA, the Supreme Court on Monday refused to intervene in the NSA controversy. It rejected a call from a privacy group to stop the agency from collecting the telephone records of millions of Verizon customers in the U.S. While the justices declined to get involved in this issue, other lawsuits on the topic are making their way through the lower courts around the country.