NYT: Documents Shed New Light on Legal Wrangling Over Spying in U.S.

http://www.nytimes.com/2014/12/13/us/politics/documents-shed-new-light-on-legal-wrangling-over-spying-in-us-.html

DEC. 12, 2014

Documents Shed New Light on Legal Wrangling Over Spying in U.S.

By CHARLIE SAVAGE

WASHINGTON -- In January 2007, Judge Malcolm Howard issued an extraordinary order on behalf of the nation's secret surveillance court. He interpreted the Foreign Intelligence Surveillance Act, which requires individual warrants to wiretap on domestic soil, in a way that authorized the Bush administration's warrantless wiretapping program, according to documents declassified on Friday. [1]

But three months later, Judge Howard's secret order came up for reauthorization before a colleague, Judge Roger Vinson. He balked, the documents showed. Judge Vinson permitted only a short extension of the program. The Bush administration then sought legislation, the Protect America Act, that amended the surveillance act to explicitly authorize the program.

While it was known [2] that in early 2007 the FISA court had briefly approved the National Security Agency warrantless wiretapping program, the newly disclosed documents shed new light on an extraordinary moment in the history of surveillance inside the United States. The revelations included the identities of the judges and aspects of the legal theory that they disagreed about.

The newly available documents, which include heavily redacted versions of the orders and Justice Department briefs seeking them, were released in response to separate Freedom of Information Act lawsuits filed by the Electronic Frontier Foundation and by The New York Times.

The orders traced back to a decision by President George W. Bush to establish a secret surveillance program, StellarWind, after the Sept. 11 attacks. Mr. Bush, citing his powers as commander in chief, told the N.S.A. it did not need to obey the Foreign Intelligence Surveillance Act.

In December 2005, The Times revealed [3] the existence of one component of StellarWind. The program collected the contents of Americans' international phone calls and email without the individualized warrants required by the surveillance act. The revelation prompted an uproar, leading the Bush administration to seek the FISA court's approval for the program.

In January 2007, Attorney General Alberto Gonzales said the program had been brought under the court's authority under a legal theory he described [4] as "innovative" and "complex," but did not detail. Documents leaked in 2013 by Edward J. Snowden, the former N.S.A. intelligence contractor, provided additional clues, and the newly disclosed documents go further.

Essentially, Judge Howard accepted a theory that reinterpreted a word in the law, "facility," which in FISA had always been understood to mean a phone number or email address a foreign agent was using to communicate. Traditional FISA orders issued by judges allow the government to direct surveillance at facilities used by suspects who meet probable cause standards.

But the Bush administration argued that "facility" could instead mean entire network switches used by large numbers of people, some of whom were members of Al Qaeda. It sought an order permitting the N.S.A. to direct surveillance at those switches, as long as its equipment forwarded only communications involving particular email addresses and phone numbers that N.S.A. analysts decided met a standard of suspicion.

That system was intended to permit the N.S.A. to quickly add and drop email addresses and phone numbers from its surveillance program. Judge Howard agreed to issue the order the Bush administration sought as long as the N.S.A. used only phone numbers and email addresses of noncitizens abroad.

Mr. Bush's original program had also intercepted, without a warrant, international communications involving domestic phone numbers and email addresses that the N.S.A. decided were suspected of ties to terrorism, but Judge Howard would not permit that. Instead, he issued an order granting approval to wiretap a specific list of domestic numbers.

In April, however, Judge Vinson, whose turn it was to approve the program, told the N.S.A. that he disagreed with Judge Howard's legal theory that the N.S.A., rather than a judge, could make probable cause findings.

[1] https://www.documentcloud.org/documents/1379006-large-content-fisa-order-documents.html

[2] http://www.nytimes.com/2014/03/12/us/how-a-courts-secret-evolution-extended-spies-reach.html

[3] http://www.nytimes.com/2005/12/16/politics/16program.html

[4] https://www.documentcloud.org/documents/1018118-alberto-gonzales-psp-letter.html