13 December 2014, NYT: Documents Shed New Light on Legal Wrangling Over Spying in U.S.
2 August 2007, NYT: FISC: (redacted) (Order and Memorandum Opinion) (PDF)
31 May 2007, NYT: FISC: (redacted) (Order) (PDF)
JAN. 27, 2015
Documents Show N.S.A.'s Wiretap Moves Before Congress's Approval
By CHARLIE SAVAGE
WASHINGTON -- A federal judge ruled in 2007 that the U.S.A. Patriot Act empowered the National Security Agency to collect foreigners' emails and phone calls from domestic networks without prior judicial approval, newly declassified documents show.
The documents  -- two rulings of the Foreign Intelligence Surveillance Court -- fill in a chapter in the history of the N.S.A.'s warrantless surveillance program. They show the agency's secret moves in the months before Congress authorized the spying by enacting the Protect America Act in August 2007.
The disclosure also brought into public view a previously unknown example of how the surveillance court, which hears arguments only from the government before issuing secret rulings, sometimes accepts novel interpretations of the law to bless government requests for spying powers.
The orders were dated May 31 and Aug. 2, 2007. Both were issued by Judge Roger Vinson of the Northern District of Florida, who was then serving on the surveillance court. The Obama administration declassified them and provided them to The New York Times on Monday as part of a continuing Freedom of Information Act lawsuit.
An earlier round of documents  released last month brought to light a dispute between Judge Vinson and another judge on the court, Malcolm J. Howard, over whether the Foreign Intelligence Surveillance Act, or FISA, could be interpreted to authorize the Bush administration's warrantless surveillance program.
In January 2007, Judge Howard issued orders interpreting FISA as authorizing such surveillance, so long as it targeted only foreigners' email and phone accounts. He let the N.S.A. decide for itself whether standards had been met for each one. But two months later, when the orders came before Judge Vinson for renewal, he said Judge Howard's interpretation was wrong, the previously released documents showed.
But the newly disclosed documents revealed that on May 31, Judge Vinson permitted the program's essential outlines to continue, changing only its legal basis. Specifically, he approved continued surveillance on a long list of accounts that were already under watch, while signing off on a process that allowed the N.S.A. to systematically begin monitoring new phone numbers and email addresses without waiting for judicial approval.
Instead, the government would compile lists of all its new targets and its reasons for going after them, which it would show to the court in weekly reports. The court would then make after-the-fact findings that the probable cause requirements had been met for those, too.
Judge Vinson ruled that this procedure was a legitimate interpretation of FISA because of a provision Congress had added to the surveillance law in the Patriot Act. The provision created so-called roving wiretap authority, which allows the F.B.I. to get orders to swiftly follow targets who switch phones, telling the court about the new numbers later.
Public discussion of the purpose and meaning of roving wiretap authority has focused on targeting individual terrorists or spies who seek to evade detection. But Judge Vinson accepted a Justice Department proposition that the target could be Al Qaeda in general, so if the N.S.A. learned of a new Qaeda suspect, it could immediately collect his communications and get after-the-fact approval.
Leaks by Edward J. Snowden, a former intelligence contractor, brought to light that the FISA court secretly interpreted another provision of the Patriot Act, known as Section 215, to permit the bulk collection of records about Americans' phone calls in 2006. Public discussion of that provision had focused on F.B.I. requests for business records, akin to how it would use a grand jury subpoena.
Judge Vinson's acceptance of this after-the-fact approval process was a turnaround. Seven weeks earlier, when he rejected Judge Howard's interpretation of FISA, Judge Vinson had emphasized the importance of having judges review whether a target met probable cause standards before surveillance started, to protect Americans' Fourth Amendment rights.
Judge Vinson's ruling apparently provoked concerns by several of his fellow judges on the surveillance court when the N.S.A. sought retroactive approval for its surveillance of new phone numbers and email accounts. That led to Judge Vinson's August 2007 ruling clarifying what his order had empowered the N.S.A. to do.
His August opinion noted that other judges -- George P. Kazen, John D. Bates, Dee Benson, Frederick J. Scullin Jr. and Colleen Kollar-Kotelly -- had raised concerns that the N.S.A. may have known about some of the newly targeted email addresses and phone numbers before Judge Vinson's order in May. Roving wiretaps are reserved for investigations in which the accounts the targets will be using are "unknown" at the time of the order.
But Judge Vinson insisted that it was acceptable for the N.S.A. to use the power to target accounts it already knew about, too, so long as analysts had not yet completed the process of "connecting the dots" until after the application for the order. He wrote that "it is appropriate to grant the government as much latitude in initiating surveillance as the statute can reasonably be construed to permit."
Judge Vinson's program was short-lived. On Aug. 5, 2007 -- three days after his second opinion -- President George W. Bush signed into law the Protect America Act, which amended FISA to authorize warrantless surveillance targeting foreigners. Judge Vinson's May 31 order expired on Aug. 24, and the Justice Department did not seek its renewal.