Check this out:
In one order, dated Jan. 28, 2009, Judge Reggie Walton noted that the Justice Department had alerted the FISC that the government had been querying the telephone records “in a manner that appears to the court to be directly contrary” to a previous court order authorizing the record collection and “contrary to the sworn attestations of several executive branch officials.”
In a stinging rebuke, Walton ordered the government to provide an explanation so that he could determine whether the collection authorization should be rescinded and whether those found to be in violation should be held in “contempt” or referred to “appropriate investigative offices.”
Specifically, Walton asked who within the government’s “executive branch” knew that the process used to query the telephone records included “identifiers that had not been individually reviewed and determined to meet the reasonable and articulable suspicion standard.”
“How long has the unauthorized querying been conducted?” Walton asked.
In a response to Walton, NSA Director Keith Alexander acknowledged that the government had overstepped its authority, but argued that the court “should not rescind or modified” its order allowing for the record collection. He also asked that Walton not proceed with any contempt proceeding or refer officials for investigation.
This is a clear and unchallenged violation of the law by the NSA. Period, full stop.
And what part of this would have been stopped, absent Edward Snowden? The NSlA has lied repeatedly. And Obama has gone happily along.
Update: And there is this summary of the FISC court opinion from the New York Times:
Since Mr. Snowden disclosed the program, the agency has said that while it gathers data on billions of calls, it makes only a few hundred queries in the database each year, when it has “reasonable, articulable suspicion” that a telephone number is connected to terrorism.
But the new documents show that the agency also compares each day’s phone call data as it arrives with an “alert list” of thousands of domestic and foreign phone numbers that it has identified as possibly linked to terrorism.
The agency told the court that all the numbers on the alert list had met the legal standard of suspicion, but that was false. In fact, only about 10 percent of 17,800 phone numbers on the alert list in 2009 had met that test, a senior intelligence official said.
In a sharply worded March 2009 ruling, Judge Reggie B. Walton described the N.S.A.’s failure to comply with rules set by the intelligence court, set limits on how it could use the data it had gathered, and accused the agency of repeatedly misinforming the judges.
“The government has compounded its noncompliance with the court’s orders by repeatedly submitting inaccurate descriptions of the alert list process” to the court, Judge Walton wrote. “It has finally come to light that the F.I.S.C.’s authorizations of this vast collection program have been premised on a flawed depiction of how the N.S.A. uses” the phone call data.
The senior American intelligence official, briefing reporters before the documents’ release, admitted the sting of the court’s reprimand but said the problems came in a complex, highly technical program and were unintentional.
“There was nobody at N.S.A. who really had a full understanding of how the program was operating at the time,” said the official, who spoke on the condition of anonymity. The official noted that the agency itself discovered the problem, reported it to the court and to Congress, and worked out new procedures that the court approved.
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On Tuesday, the National Institute of Standards and Technology, the agency charged with setting federal cybersecurity standards, scrambled to try to restore public confidence, after reports that it had recommended a standard that contained a back door for the N.S.A.
The agency said it would reopen the public vetting process for the standard, used by software developers around the world. “If vulnerabilities are found in these or any other N.I.S.T. standard, we will work with the cryptographic community to address them as quickly as possible,” the agency said in a statement.