Original NSA Spying Order Released as Supreme Court Refuses to Consider Program’s Legality

Thursday, November 21, 2013
Judge Colleen Kollar-Kotelly (AP Photo)

After months of revelations and criticism concerning the National Security Agency’s (NSA) secret surveillance program targeting Americans’ communications, the Obama administration this week released a heavily edited copy of the secret court order approving the controversial program years ago. The disclosure came just as the U.S. Supreme Court rejected a request from civil libertarians to consider the legality of the so-called metadata collection of phone and email records by the NSA.


The 87-page document, released by the Office of the Director of National Intelligence (DNI), originated with the Foreign Intelligence Surveillance Court (FISC), which gave the okay for the NSA to collect and review volumes of communication details, like who sent them or when, but not the content of their messages. The date of the document is blacked out, but it is believed to be from 2004.


Even with large portions redacted, the court order showed that the presiding judge of the FISC at that time, Colleen Kollar-Kotelly, approved the spying and what she conceded was the NSA’s “novel use of statutory authorities for pen register/trap and trace surveillance.”


Pen registers and trap-and-trace devices record the incoming and outgoing routing information of communications, like phone calls.


Kollar-Kotelly ruled that collecting the metadata in bulk was “harmonious with the ‘purpose’ of Congress and prior court rulings–even though no surveillance statute ever authorized it and top officials at the justice department and the FBI threatened to resign in 2004 over what they considered its dubious legality,” Spencer Ackerman wrote for The Guardian.


Any hesitancy that Kollar-Kotelly may have indicated in giving approval to the program was outweighed by the assumption of a legitimate need on the part of the George W. Bush administration. “Deference should be given to the fully considered judgment of the executive branch in assessing and responding to national security threats and in determining the potential significance of intelligence-related information,” she wrote.


The DNI disclosure of the court order—along with hundreds of other related documents—was ordered by President Barack Obama, whose administration is facing transparency lawsuits by civil liberties groups seeking details about domestic spying operations.


One of these groups, the Electronic Privacy Information Center (EPIC), filed a legal challenge (pdf) directly with the Supreme Court, arguing that the FISC had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation,” according to The New York Times.


But the court rejected the group’s petition without explanation. One possible reason for the rejection could have been the unusualness of filing directly with the high court, instead of first taking the matter to a federal district court.


The administration urged the justices not to hear the case, saying “the proper way” to mount a challenge “is to file an action in Federal District Court to enjoin the program, as other parties have done.”

-Noel Brinkerhoff


To Learn More:

Congress and Courts Weigh Restraints on N.S.A. Spying (by Adam Liptak and Jeremy W. Peters, New York Times)

NSA Spying Challenge Won't Reach High Court (by Barbara Leonard, Courthouse News Service)

On Petition for a Writ of Mandamus and Prohibition, or a Writ of Certiorari, to the Foreign Intelligence Surveillance Court (Electronic Privacy Information Center) (pdf)

Court Order That Allowed NSA Surveillance is Revealed for First Time (by Spencer Ackerman, Common Dreams)

Sobriety Checkpoints Paved Path to NSA Email Spying (by David Kravets, Wired)

Official Releasing what Appears to be Original Court File Authorizing NSA to Conduct Sweeps (by Ellen Nakashima and Greg Miller, Washington Post)

DNI Clapper Declassifies Additional Intelligence Community Documents Regarding Collection Under Section 501 of the Foreign Intelligence Surveillance Act (Office of the Director of National Intelligence)

FISA Court Reveals Why It Allowed NSA to Log Americans’ Calls, Claims Telecoms Didn’t Protest (by Noel Brinkerhoff and Danny Biederman, AllGov)

Court Throws out Obama Administration’s State Secrets Defense in NSA Surveillance Case (by Noel Brinkerhoff and Danny Biederman, AllGov)


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