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Judge asked U.S. in 2009 to prove collection of phone records was justified to stop terrorists

A federal judge overseeing U.S. surveillance programs raised doubts in the spring of 2009 about whether the massive, secret collection of Americans’ daily phone calls was all that important to protecting the country from terrorists.

Newly declassified records show that four years before the American public would learn that the National Security Agency had created a vast database of all its phone calls, a conservative jurist with detailed knowledge of the program was far from convinced that it led to the identification of terrorist plots.

“The time has come for the government to describe to the Court how . . . the value of the program to the nation’s security justifies the continued collection and retention of massive quantities of U.S. person information,” U.S. District Judge Reggie Walton wrote in March 2009.

It is the same question that several members of Congress have been asking since the classified program was disclosed by former NSA contractor Edward Snowden in leaks to The Washington Post and Britain’s Guardian newspaper.

In early 2009, as a member of the Foreign Intelligence Surveillance Court, Walton raised questions about the program’s true utility. He had just learned that, over the three previous years, the NSA had scrutinized the records of Americans’ phone calls on a daily basis in violation of court orders to protect the privacy of people who were not the targets of investigations.

Read the documents

IG report

Court records detail NSA violations

The Obama administration declassified documents about intelligence collection under Section 501 of the Foreign Intelligence Surveillance Act on Sept. 10.

In a strongly worded opinion, Walton pointed out that, while the government repeatedly claimed the phone program was critical to its effort to spot terrorist activity, a submission from NSA Director Keith Alexander showed that it had helped launch only three preliminary national security investigations by the FBI.

“However, the mere commencement of a preliminary investigation, by itself, does not seem particularly significant,” Walton wrote. He added that it would be valuable if it could be shown that the probes uncovered previously unknown terrorists plotting on U.S. soil.

Walton noted that he had to rely on the government claims that the record collection was critical to national security and being used legally. But because of a pattern of misstatements and chronic violations, the court “no longer has such confidence,” he wrote.

After Snowden disclosed the collection of Americans’ phone records, among other surveillance programs, government officials have waged a public campaign to stress that they are essential to counter­terrorism efforts.

In mid-June, Alexander said domestic phone data and another program focused on the surveillance of foreign communications had together helped foil more than 50 terrorist plots.

Critics of the domestic program immediately rebutted Alexander, saying the collection of Americans’ phone records, unlike the surveillance of foreigners overseas, had no such impact. With the release of more documents, U.S. intelligence officials testified before Congress in July that the program focused on Americans provided useful assistance in 12 cases but was pivotal in identifying one.

The case that the NSA points to as its primary example of the phone program’s usefulness is that of Basaaly Moalin, a San Diego cabdriver from Somalia who sent $8,500 to a terrorist group in his home country. Skeptics in Congress say the government could have easily sought court permission for Moalin’s phone records without vacuuming up tens of million of U.S. phone records.

Two key critics of the program, Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), have pushed for the Obama administration to end the collection of Americans’ records.

The senators have pointed to the government’s earlier insistence that a parallel program that allowed the collection of Internet data from Americans was also a vital safeguard.

As with the phone program, top intelligence community officials privately asserted to the Foreign Intelligence Surveillance Court and congressional intelligence committees that data on Internet use was key to tracing terrorists and stopping plots in real time. Wyden and Udall, who were receiving those private briefings, demanded that the government show proof.

Instead, the Obama administration shuttered the Internet program in 2011. Director of National Intelligence James R. Clapper Jr. publicly confirmed to Congress in a July 27 letter that the government “terminated this collection program in 2011 for operational and resource reasons.”

A 2009 intelligence agency document indicated that the program was not that helpful in detecting terrorists, in part because it was so expansive: “Although the programs collect a large amount of information, the vast majority of that information is never reviewed by anyone in the government, because the information is not responsive to the limited queries that are authorized for intelligence purposes.”

An NSA spokesman declined to comment for this article.

Wyden said he sees no evidence that the collection of Americans’ phone data provided critical information that the government could not have gotten in other ways and said he is disturbed by the privacy violations disclosed Tuesday.

“Considering its lack of value and the significant privacy violations that are inherent in the bulk collection program, I can’t find any reason why this program should continue to exist at all,” he said.

Julie Tate and Ellen Nakashima contributed to this report.

Carol Leonnig covers federal agencies with a focus on government accountability.

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