The U.S. government has released newly declassified documents that lift the veil on a federal court’s 2007 decision to shut down the Bush administration’s program to wiretap the phone calls and e-mails of suspected al-Qaeda members on U.S. soil.
Judge Roger Vinson of the Foreign Intelligence Surveillance Court rejected the government’s request to target foreigners through U.S. facilities because it did not meet the probable cause standard required under the surveillance law.
The redacted documents, released Friday in response to separate Freedom of Information Act (FOIA) lawsuits by the Electronic Frontier Foundation (EFF) and the New York Times, shed new light on a pivotal moment in U.S. surveillance history — a several-month period in 2007 in which the Bush administration sought to bring its program of warrantless wiretapping under court oversight.
Vinson’s April 2007 denial of the government’s request led to passage later that year of the Protect America Act, a temporary law to enable the government to resume interception of suspected terrorists’ communications. A year later, Congress passed the FISA Amendments Act, which expanded the government’s authority to wiretap foreigners through U.S. companies without individualized warrants.
Civil liberties advocates lauded the government’s release of the material but said it should have been released years ago when the laws were being debated.
“We’re seeing these documents seven years too late,” said Mark M. Jaycox, EFF’s legislative analyst. “The government is yet again late to the game in disclosing records vital to the national discussion, and we’re all the worse for it.”
The American Civil Liberties Union sought release of the same documents in 2007, but a different surveillance court judge denied the request, saying that even a redacted set of material “may confuse or obscure, rather than illuminate” the decisions.
What’s changed since then are the leaks of classified documents by former National Security Agency contractor Edward Snowden revealing widespread agency surveillance and the government’s and court’s secret legal interpretations justifying it.
“That secrecy is one of the reasons government surveillance authority expanded so steadily and dramatically and why Americans were ultimately so shocked when the Snowden material started to appear in the newspapers,” said Jameel Jaffer, ACLU deputy legal director.
The Bush administration’s program of warrantless surveillance, code-named StellarWind, was launched in secret after the 2001 terrorist attacks to enable NSA analysts to intercept through U.S. companies the phone calls and e-mails of suspected al-Qaeda members without having to get court permission for each number and e-mail, as required by the Foreign Intelligence Surveillance Act (FISA).
Aspects of the program were first disclosed in December 2005 by the New York Times, igniting national controversy.
In January 2007, the administration announced that it had placed the program, up to then conducted solely under executive authority, under court supervision. But it did not release details.
According to the documents, Judge Malcolm J. Howard, then on the FISA court, approved the government’s request to carry out surveillance of both U.S. persons and foreigners. The government had submitted what appeared to be a two-page list of phone numbers of U.S. persons suspected of involvement with al-Qaeda.
Howard also approved the Justice Department’s expansive definition of FISA’s requirement that there be probable cause to believe that the “facilities” being wiretapped were being used by the foreign target. The lawyers argued that “facilities” could be interpreted broadly and “not be limited to particular telephone numbers or e-mail addresses.”
The government said that facilities could be high-capacity switches used by companies to route international communications.
The administration adapted an argument made by another FISA court judge in 2004 that the law does not require that there be “a person for every facility” to be tapped. That secret ruling by Judge Colleen Kollar-Kotelly authorizing NSA’s bulk collection of Internet metadata was released by the government last year, again following a Snowden disclosure and in response to a FOIA lawsuit.
Three months after Howard signed off on the government’s program, Vinson rejected it, finding that the facilities language was too broad and that the government improperly wanted “to delegate to NSA the court’s responsibility” to approve surveillance of each number or e-mail address.
“The law does not permit me . . . to approve or authorize alternative procedures to relieve the government of burdensome safeguards expressly imposed by the statute,” Vinson wrote.