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In an opinion apparently written in June 2009, Walton said the court was “gravely concerned” that “NSA analysts, cleared and otherwise, have generally not adhered to the dissemination restrictions proposed by the government, repeatedly relied on by the court in authorizing the [email and internet bulk] metadata, and incorporated into the court’s orders in this matter [redacted] as binding on NSA.” Walton said the NSA’s legal team had failed to satisfy the training requirements that NSA frequently points to in congressional testimony as demonstrating its scrupulousness. Walton added that he was “seriously concerned” by the placement of Americans’ email and internet metadata into “databases accessible by outside agencies, which, as the government has acknowledged, violates not only the court’s orders, but also NSA’s minimization and dissemination procedures as set forth in USSID 18.”

In 2011, Bates wrote that the “volume and nature” of the NSA’s bulk collection on foreign internet content was “fundamentally different from what the court had been led to believe”. Yet the documents disclosed Monday night, thanks to a transparency lawsuit, show that Bates and Walton permitted the surveillance of Americans’ bulk email and internet metadata to continue under additional restrictions, out of concern for the ongoing terrorism threat.

Elizabeth Goitien of the Brennan Center for Justice at New York University said that the declassified opinions raise disturbing questions about the NSA’s truthfulness. “Either the NSA is really trying to comply with the court’s orders and is absolutely incapable of doing so, in which case it’s terrifying that they’re performing this surveillance, or they’re not really trying to comply,” Goitien said. “Neither of those explanations is particularly comforting.”

NSA Has Hidden Its Most Radical Surveillance Operations … Even from People Like Snowden Who Had General “Code Word” Clearance WASHINGTON’S BLOG: Glenn Greenwald – supposedly, in the next couple of days or weeks – is going to disclose, based on NSA documents leaked by Snowden, that the NSA is spying on all sorts of normal Americans … and that the spying is really to crush dissent.  [Background here, here and here.] Does Snowden even have documents which contain the information which you’ve seen? RUSSELL TICE:  The answer is no. WASHINGTON’S BLOG: So you saw handwritten notes. And what Snowden was seeing were electronic files …?

RUSSELL TICE: Think of it this way.  Remember I told you about the NSA doing everything they could to make sure that the information from 40 years ago – from spying on Frank Church and Lord knows how many other Congressman that they were spying on – was hidden? Now do you think they’re going to put that information into Powerpoint slides that are easy to explain to everybody what they’re doing? They would not even put their own NSA designators on the reports [so that no one would know that] it came from the NSA.  They made the reports look like they were Humint (human intelligence) reports.  They did it to hide the fact that they were NSA and they were doing the collection. That’s 40 years ago.  [The NSA and other agencies are still doing "parallel construction", "laundering" information to hide the fact that the information is actually from mass NSA surveillance.] Now, what NSA is doing right now is that they’re taking the information and they’re putting it in a much higher security level.  It’s called “ECI” - Exceptionally Controlled Information  – and it’s called the black program … which I was a specialist in, by the way. I specialized in black world – DOD and IC (Intelligence Community) – programs, operations and missions … in “VRKs”, “ECIs”, and “SAPs”, “STOs”. SAP equals Special Access Program. It’s highly unlikely Mr. Snowden had any access to these. STO equals Special Technical Operations  It’s highly unlikely Mr. Snowden had any access to these.

Now in that world – the ECI/VRK world – everything in that system is classified at a higher level and it has its own computer systems that house it.  It’s totally separate than the system which Mr. Snowden was privy to, which was called the “JWICS”: Joint Worldwide Intelligence Communications System.  The JWICS system is what everybody at NSA has access to.  Mr Snowden had Sys Admin [systems administrator] authority for the JWICS. And you still have to have TS/SCI clearance [i.e. Top Secret/ Sensitive Compartmented Information - also known as “code word” - clearance] to get on the JWICS. But the ECI/VRK systems are much higher [levels of special compartmentalized clearance] than the JWICS. And you have to be in the black world to get that [clearance]. ECI = Exceptionally Controlled Information. I do not believe Mr. Snowden had any access to these ECI controlled networks). VRK = Very Restricted Knowledge. I do not believe Mr. Snowden had any access to these VRK controlled networks. These programs typically have, at the least, a requirement of 100 year or until death, ’till the person first being “read in” [i.e. sworn to secrecy as part of access to the higher classification program] can talk about them.  [As an interesting sidenote, the Washington Times reported in 2006 that – when Tice offered to testify to Congress about this illegal spying – he was informed by the NSA that the Senate and House intelligence committees were not cleared to hear such information.]

It’s very compartmentalized and – even with stuff that they had – you might have something at NSA, that there’s literally 40 people at NSA that know that it’s going on in the entire agency. When the stuff came out in the New York Times [the first big spying story, which broke in 2005] – and I was a source of information for the New York Times –   that’s when President Bush made up that nonsense about the “terrorist surveillance program.” By the way, that never existed. That was made up. There was no such thing beforehand. It was made up … to try to placate the American people. The NSA IG (Inspector General) – who was not cleared for this – all of a sudden is told he has to do an investigation on this; something he has no information or knowledge of. So what they did, is they took a few documents and they downgraded [he classification level of the documents] – just a few – and gave them to them to placate this basic whitewash investigation.

Snowden’s Failure To Understand the Most Important Documents RUSSELL TICE: Now, if Mr. Snowden were to find the crossover, it would be those documents that were downgraded to the NSA’s IG. The stuff that I saw looked like a bunch of alphanumeric gobbledygook.  Unless you have an analyst to know what to look for – and believe me, I think that what Snowden’s done is great – he’s not an intelligence analyst.  So he would see something like that, and he wouldn’t know what he’s looking at. But that would be “the jewels”. And the key is, you wouldn’t know it’s the jewels unless you were a diamond miner and you knew what to look for. Because otherwise, there’s a big lump of rock and you don’t know there’s a diamond in there. I worked special programs. And the way I found out is that I was working on a special operation, and I needed information from NSA … from another unit. And when I went to that unit and I said “I need this information”, and I dealt with [satellite spy operations], and I did that in the black world. I was a special operations officer. I would literally go do special missions that were in the black world where I would travel overseas and do spooky stuff.

Cheney Was Running the Show WASHINGTON’S BLOG: You said in one of your interviews that Dick Cheney ordered the intercepts that you found in the burn bags [the bags of documents which were slated to be destroyed because they were so sensitive]. Is that right … and if so, how do you know that? RUSSELL TICE: I did not know one way or the other until I talked to a very senior person at NSA who – much later – wanted to have a meeting with me. And we had a covert, clandestine style meeting. And that’s when this individual told me that the whole thing was being directed and was coming from the vice president’s office … Cheney, through his lawyer David Addington. WASHINGTON’S BLOG:  It sounds like it wasn’t going through normal routes?  It’s not like Cheney or Addington made formal requests to the NSA … through normal means? RUSSELL TICE: No, not normal at all. All on the sly … all “sneaky pete” under the table, in the evening when most NSA employees are gone for the day. This is all being done in the evenings … between like 7 [at night] and midnight.

NSA Is Spying On CONTENT as Well as Metadata WASHINGTON’S BLOG: And from what you and others have said, it’s content as well as Metadata? RUSSELL TICE: Of course it is. Of course. [Background. But see this.] NSA Spying On Journalists, Congress, Admirals, Lawyers … RUSSELL TICE: In 2009, I told [reporters] that they were going after journalists and news organizations and reporters and such. I never read text of Congressman’s conversations. What I had was information – sometimes hand-written – of phone numbers of Congressmen, their wives, their children, their staffers, their home numbers, their cellphone numbers, their phone numbers of their residence back in Oregon or whatever state they’re from, and their little offices back in their state. Or an Admiral and his wife, and his kids and his staffers …

The main thing I saw more than anything else were lawyers and law firms. I saw more lawyers or law firms being wiretapped than anything else. These are the phone numbers I saw written. And then I would see those numbers incorporated into those lists with the columns of information about the phone number, and the serial number and the banks of recorders and digital converters and the data storage devices. I could see handwritten phone numbers and notes, sometimes with names, sometimes not.

4. The importance of adversarial review. The court recognized that public, adversarial litigation concerning the lawfulness of this spying program was vitally important to its decision — and it drew a direct contrast to the secret, one-sided proceedings that occur in the Foreign Intelligence Surveillance Court.

3. Metadata is incredibly sensitive and revealing. The government has long argued that the phone records program doesn’t reveal the contents of calls, and as such, it is not an invasion of privacy. But Metadata, especially in aggregate, can be just as revealing as content, painting a detailed picture of a person’s life. 

5. The congressional reforms under consideration just don’t cut it. Ahead of Section 215’s sunset on June 1, Sen. Majority Leader Mitch McConnell (R-Ky.) is trying to push through a straight reauthorization of the provision, extending its life by another five years. After today’s decision came down, he took to the floor to defend the program — a position altogether at odds with the appeals court decision, with the conclusions of multiple executive-branch review groups who found the program hasn’t been effective in stopping terrorism, and with the clear consensus that supports far-reaching surveillance reform. Another bill in play (which the ACLU neither supports nor opposes), the USA Freedom Act of 2015, doesn’t go nearly far enough, most notably in ensuring that the government cannot engage in broad collection of innocent Americans’ private information.

GCHQ vacuums up the website browsing histories using “probes” that tap into the international fiber-optic cables that transport Internet traffic across the world. A huge volume of the Internet data GCHQ collects flows directly into a massive repository named Black Hole, which is at the core of the agency’s online spying operations, storing raw logs of intercepted material before it has been subject to analysis. Black Hole contains data collected by GCHQ as part of bulk “unselected” surveillance, meaning it is not focused on particular “selected” targets and instead includes troves of data indiscriminately swept up about ordinary people’s online activities. Between August 2007 and March 2009, GCHQ documents say that Black Hole was used to store more than 1.1 trillion “events”  a term the agency uses to refer to metadata records  with about 10 billion new entries added every day. As of March 2009, the largest slice of data Black Hole held  41 percent  was about people’s Internet browsing histories. The rest included a combination of email and instant messenger records, details about search engine queries, information about social media activity, logs related to hacking operations, and data on people’s use of tools to browse the Internet anonymously.

Throughout this period, as smartphone sales started to boom, the frequency of people’s Internet use was steadily increasing. In tandem, British spies were working frantically to bolster their spying capabilities, with plans afoot to expand the size of Black Hole and other repositories to handle an avalanche of new data. By 2010, according to the documents, GCHQ was logging 30 billion metadata records per day. By 2012, collection had increased to 50 billion per day, and work was underway to double capacity to 100 billion. The agency was developing “unprecedented” techniques to perform what it called “population-scale” data mining, monitoring all communications across entire countries in an effort to detect patterns or behaviors deemed suspicious. It was creating what it saidwould be, by 2013, “the world’s biggest” surveillance engine “to run cyber operations and to access better, more valued data for customers to make a real world difference.” HERE WAS A SIMPLE AIM at the heart of the top-secret program: Record the website browsing habits of “every visible user on the Internet.” Before long, billions of digital records about ordinary people’s online activities were being stored every day. Among them were details cataloging visits to porn, social media and news websites, search engines, chat forums, and blogs.

The mass surveillance operation — code-named KARMA POLICE — was launched by British spies about seven years ago without any public debate or scrutiny. It was just one part of a giant global Internet spying apparatus built by the United Kingdom’s electronic eavesdropping agency, Government Communications Headquarters, or GCHQ. The revelations about the scope of the British agency’s surveillance are contained in documents obtained by The Intercept from National Security Agency whistleblower Edward Snowden. Previous reports based on the leaked files have exposed how GCHQ taps into Internet cables to monitor communications on a vast scale, but many details about what happens to the data after it has been vacuumed up have remained unclear.

Still, the CIA had one further reason for doubting claims that Gul was at the center of an Al-Qaeda election-year plot. Ghu told the CIA about an attempt by Gul, in the fall of 2003, to sell anti-aircraft missiles to Al-Qaeda; the Qaeda figure in Ghul’s story didn't even want to work with Gul. And Ghul later learned Gul was probably lying about his ability to acquire the missiles.

Nevertheless, the CIA took seriously Asset Y’s claim that Gul was involved in an election plot and moved quickly to gain custody of him after his arrest by Pakistan in June 2004. Even before CIA rendered Gul to its custody, Tenet started lobbying to get torture techniques reapproved for his interrogation. On June 29, Tenet wrote National Security Adviser Condoleezza Rice seeking approval to once again use some of the techniques whose use he suspended less than four weeks earlier, in the hope of gathering information on the election season plot. "Given the magnitude of the danger posed by the pre-election plot and Gul's almost certain knowledge of any intelligence about that plot” Tenet wrote, relying on Asset Y's claims, “I request the fastest possible resolution of the above issues." On July 20, according to the report, top administration officials gave CIA verbal approval to get back into the torture business. Ashcroft stated that most previously approved interrogation techniques would not violate U.S. law on July 22 (though not waterboarding). And by the end of July, CIA started coaxing DOJ to approve other techniques — such as slapping someone in the stomach or hosing them down with cold water or limiting their food — which had already been used by the CIA but never officially approved by DOJ.

At the same time, the government was also using the ostensible election-season plot, among others, to persuade the Foreign Intelligence Surveillance Court (FISC) – the secret court that approves domestic spying on Americans – to authorize the Internet dragnet. After Bush halted the Internet dragnet on March 26, his aides began working with FISC presiding judge Colleen Kollar-Kotelly to find a way to use FISA authority -- normally been used to access records for a single phone or Internet account -- to collect Internet metadata in bulk. They provided a series of briefings, including one attended by Terrorist Threat Integration Center head John Brennan and CIA Director George Tenet, to explain the threat. In addition, they provided what – under Stellar Wind – analysts called a “scary memo,” summarizing all the threats facing the country to underscore the urgency of the program. Tenet's declaration included as an appendix to an application submitted in the days before July 14, 2004, laid out the threats CIA and others were fighting that summer.

Judge Kollar-Kotelly invoked Tenet's material in a redacted section of her opinion authorizing the phone dragnet, pointing to it as a key reason to permit collection of what she called “enormous” amounts of data from innocent Americans.

Soon after the reauthorization of the torture and the Internet dragnet, the CIA realized ASSET Y's story wasn't true. By September, an officer involved in Janat Gul's interrogation observed, “we lack credible information that ties him to pre-election threat information or direct operational planning against the United States, at home or abroad.” In October, CIA reassessed ASSET Y, and found him to be deceptive. When pressured, ASSET Y admitted had had made up the story of a meeting set up by Gul. ASSET Y blamed his CIA handler for pressuring him for intelligence, leading him to lie about the meeting. By 2005, CIA had concluded that ASSET Y was a fabricator, and Janat Gul was a “rather poorly educated village man [who is] quite lazy [who] was looking to make some easy money for little work and he was easily persuaded to move people and run errands for folks on our target list” (though the Agency wasn't always forthright about the judgment to DOJ). The torture program, which was resumed in part because of a perceived urgency of extracting information from Gul on a plot that didn't exist, continued for several more years. The Internet dragnet continued under FISC authorization, on and off, until December 2011. And several other still active NSA programs, including the phone dragnet, relied on Kollar-Kotelly's earlier authorization as precedents – the case for which had also been derived, in part, from one long discredited fabricator.

parts of what had happened began to become public, starting with a December 2005 article in The New York Times that revealed the warrantless wiretapping portion of the program. The bulk phone and email metadata programs, however, remained secret until 2013, when they came to light in leaks by Mr. Snowden.While the basic existence of the March 2004 crisis has been known, it was not until Mr. Snowden’s leaks that it became clear that it pertained only to the Internet metadata program. However, it has remained murky what Mr. Goldsmith objected to in light of his willingness to bless the rest of Stellarwind based on a sweeping theory of presidential wartime powers.Those portions of the memo remain redacted in the newly released version.

Despite growing opposition in some quarters to ending the NSA’s program, a “clean” authorization — one that would enable its continuation without any changes — is unlikely, lawmakers from both parties say. Sen. Ron Wyden (D-Ore.), a leading opponent of the NSA’s program in its current format, said he would be “surprised if there are 60 votes” in the Senate for that. In the House, where there is bipartisan support for reining in surveillance, it’s a longer shot still. “It’s a toxic vote back in your district to reauthorize the Patriot Act, if you don’t get some reforms” with it, said Rep. Thomas Massie (R-Ky.). The House last fall passed the USA Freedom Act, which would have ended the NSA program, but the Senate failed to advance its own version.The House and Senate judiciary committees are working to come up with new bipartisan legislation to be introduced soon.

The tech firms and privacy groups’ demands are a baseline, they say. Besides ending bulk collection, they want companies to have the right to be more transparent in reporting on national security requests and greater declassification of opinions by the Foreign Intelligence Surveillance Court.

Some legal experts have pointed to a little-noticed clause in the Patriot Act that would appear to allow bulk collection to continue even if the authority is not renewed. Administration officials have conceded privately that a legal case probably could be made for that, but politically it would be a tough sell. On Tuesday, a White House spokesman indicated the administration would not seek to exploit that clause. “If Section 215 sunsets, we will not continue the bulk telephony metadata program,” National Security Council spokesman Edward Price said in a statement first reported by Reuters. Price added that allowing Section 215 to expire would result in the loss of a “critical national security tool” used in investigations that do not involve the bulk collection of data. “That is why we have underscored the imperative of Congressional action in the coming weeks, and we welcome the opportunity to work with lawmakers on such legislation,” he said.

Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records. Following the 1995 Oklahoma City bombing, Congress allowed applications for obtaining records from certain kinds of businesses. In 2001, lawmakers further expanded FISA to give the government access to any business or personal records. Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.

The telephony metadata program raises similar concerns. FISA did not originally envision the government accessing records. Following the 1995 Oklahoma City bombing, Congress allowed applications for obtaining records from certain kinds of businesses. In 2001, lawmakers further expanded FISA to give the government access to any business or personal records. Under section 215 of the Patriot Act, the government no longer has to prove that the target is a foreign power. It need only state that the records are sought as part of an investigation to protect against terrorism or clandestine intelligence.This means that FISA can now be used to gather records concerning individuals who are neither the target of any investigation nor an agent of a foreign power. Entire databases — such as telephony metadata — can be obtained, as long as an authorized investigation exists.Congress didn’t pass Section 215 to allow for the wholesale collection of information. As Rep. F. James Sensenbrenner Jr. (R-Wis.), who helped draft the statute, wrote in the Guardian: “Congress intended to allow the intelligence communities to access targeted information for specific investigations. How can every call that every American makes or receives be relevant to a specific investigation?”As a constitutional matter, the Supreme Court has long held that, where an individual has a reasonable expectation of privacy, search and seizure may occur only once the government has obtained a warrant, supported by probable cause and issued by a judge. The warrant must specify the places to be searched and items to be seized.

There are exceptions to the warrant requirement. In 1979 the court held that the use of a pen register to record numbers dialed from someone’s home was not a search. The court suggested that people who disclose their communications to others assume the risk that law enforcement may obtain the information.More than three decades later, digitization and the explosion of social-network technology have changed the calculus. In the ordinary course of life, third parties obtain massive amounts of information about us that, when analyzed, have much deeper implications for our privacy than before.As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications.Americans reasonably expect that their movements, communications and decisions will not be recorded and analyzed by the government. A majority of the Supreme Court seems to agree. Last year, the court considered a case involving 28-day GPS surveillance. Justice Samuel Alito suggested that in most criminal investigations, long-term monitoring “impinges on expectations of privacy.” Justice Sonia Sotomayor recognized that following a person’s movements “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”The FISC is supposed to operate as a check. But it is a secret court, notorious for its low rate of denial. From 1979 to 2002, it did not reject a single application. Over the past five years, out of nearly 8,600 applications, only two have been denied.

Jewel is suing on behalf of all AT&T customers, and Shubert is suing on behalf of all Americans.

At issue is the NSA’s program to intercept phone and e-mail communications without a warrant, which was placed under court supervision in 2007 and then authorized by Congress in 2007 and 2008. Jewel also is challenging the agency’s collection of Americans’ phone metadata, or call logs that include numbers dialed and call lengths and times. That program was placed under court supervision in 2006 on the basis of a statute that has been reauthorized several times since then. Its existence was revealed in June following a leak by former NSA contractor Edward Snowden. The government has already suffered a setback in the case. U.S. District Judge Jeffrey S. White in July ruled that the government could not assert a state-secrets privilege when the underlying law, the Foreign Intelligence Surveillance Act, offers a process to hear classified evidence in closed chambers.

The declassification of the Bush administration’s authorization of the programs came in response to White’s order to the government to review declarations filed in the case. The judge wanted to see what could be declassified in light of Snowden’s revelations as well as subsequent disclosures made by the government. The government also declassified eight other declarations filed in the litigation by senior intelligence officials alleging national security would be harmed by disclosing program information.