Latest release of NSA documents includes 2004 ruling on emails

By Charlie Savage and James Risen, New York Times News Service

Monday, Nov. 18, 2013 | 8:30 p.m.

WASHINGTON — The Obama administration released hundreds of pages of newly declassified documents related to National Security Agency surveillance late Monday, including an 87-page ruling in which the Foreign Intelligence Surveillance Court first approved a program to systematically track Americans’ emails during the Bush administration.

“The raw volume of the proposed collection is enormous,” wrote Judge Colleen Kollar-Kotelly, who was then the chief judge on the secret surveillance court. The government censored the date of her ruling in the publicly released document, and many sections — including a description of what she had been told about terrorism threats — were heavily redacted.

The ruling was among a trove of documents that were declassified and made public by the Office of the Director of National Intelligence in response to Freedom of Information Act lawsuits, including those by the American Civil Liberties Union and the Electronic Freedom Foundation.

Many of the documents have historic significance, showing how Bush administration surveillance programs that were initially conducted without court oversight and outside statutory authorization were brought under the authority of the surveillance court and subjected to oversight rules. The documents also included reports to Congress, training slides and regulations issued under President Barack Obama.

The Bush administration temporarily shut down its bulk collection of email logs after Justice Department lawyers raised legal concerns in March 2004. Kollar-Kotelly declared the collection lawful in July 2004, according to documents leaked by Edward J. Snowden, the former NSA contractor.

The email metadata — information like the identities of senders and recipients and the dates of messages, but not the content — was used in searches of unknown associates of terrorism suspects. The Obama administration has said it shut down the email metadata program in 2011 for “operational and resource” reasons.

Several other court documents released on Monday indicated that the program had difficulties with collecting Internet communications beyond the scope of what the court had authorized. Redactions made it difficult to understand the specifics of the problems, but an accompanying statement offered more details. At one point, it said, the government had shut down the program for several months “because of the significance and complexity of these incidents.”

The New York Times reported in 2009 that the NSA had intercepted private email messages and phone calls of Americans on a scale that went beyond broad legal limits. A statement released Monday said an excess collection problem in 2009 was the result of “longstanding compliance issues associated with NSA’s electronic communications and telephony bulk metadata collection programs” and that the NSA “recognized that its compliance and oversight structure had not kept pace with its operational momentum.”

In a statement, James Clapper, the director of national intelligence, said that with the new releases, nearly 2,000 pages about surveillance matters, had been declassified since Obama instructed him in June to “make public as much information as possible about certain sensitive programs while being mindful of the need to protect sensitive classified intelligence activities and national security.”

The trove also included the Bush administration’s 2006 application for initial approval by the surveillance court to collect bulk logs of all domestic phone calls under a provision of the Patriot Act that allows the collection of business records deemed “relevant” to an investigation,” another program it had previously undertaken unilaterally. The call record program is still active.