WASHINGTON — The Obama administration on Wednesday released formerly classified documents outlining a once-secret program of the National Security Agency that is collecting records of all domestic phone calls in the United States, as top officials testified before the Senate Judiciary Committee.
The documents include an April ruling by the Foreign Intelligence Surveillance Court that supported a secondary order — leaked by the former NSA contractor Edward J. Snowden — requiring a Verizon subsidiary to turn over all of its customers’ phone logs for a three-month period. It ordered the government to follow certain rules when accessing the data.
The releases also included two formerly classified briefing papers to Congress from 2009 and 2011, when the provision of the Patriot Act that the court relied upon to issue that order was up for reauthorization. The papers outlined the bulk collection of “metadata” logging all domestic phone calls and emails of Americans, which they portray as an “early warning system” that allowed the government to quickly see who is linked to a terrorism suspect.
“Both of these programs operate on a very large scale,” the 2011 briefing paper said, followed by something that is redacted, and then: “However, as described below, only a tiny fraction of such records are ever viewed by NSA intelligence analysts.”
Both programs traced back to the surveillance efforts the Bush administration secretly started after the terrorist attacks of Sept. 11, 2001, and which initially operated outside statutory authority or court oversight. The Bush administration later obtained orders from the Foreign Intelligence Surveillance Court to continue them.
The Obama administration has said it shut down the program that collected email “metadata” in 2011, but it is not clear whether such collection has continued under a different program.
At the start of Wednesday’s hearing, the chairman of the Senate Judiciary Committee, Sen. Patrick J. Leahy, D-Vt., expressed deep skepticism about the phone records program. He said he had reviewed a list of terrorist plots thwarted or disrupted because of the program, and that there was scant evidence that it had done so.
Citing the “massive privacy implications” of the program, Leahy said: “If this program is not effective it has to end. So far I’m not convinced by what I’ve seen.”
But Sen. Dianne Feinstein, the chairwoman of the Senate intelligence committee who is also on the judiciary panel, said that while the program could be changed with greater restrictions and safeguards, it should be preserved because it would place the nation “in jeopardy” to eliminate it.
Robert Litt, the top lawyer in the Office of the Director of National Intelligence, testified that the Obama administration was also “open to re-evaluating this program” to create greater public confidence that it protects privacy while “preserving the essence of the program.”
Last week, the House of Representatives voted narrowly to defeat an amendment to shut down the NSA’s domestic phone record tracking program. The 205-to-217 vote was far closer than expected and came as members of both parties defied their leadership to oppose continuing the domestic call logging program, suggesting that momentum against it was building.
Before Snowden’s leaks made clear what the government was doing with the Patriot Act program, several senators on the Intelligence Committee had made cryptic warnings that it was interpreting the law in a twisted way to do something alarming and made reference to the 2011 briefing paper. The New York Times filed a lawsuit under the Freedom of Information Act to obtain that document.
The lawsuit contended that the abstract legal analysis outlining what the government believed the Patriot Act meant could not be withheld from the public as properly classified and should be released, even if the passages detailing the program that relied upon that interpretation was redacted.
The Obama administration had argued that it could withhold that document entirely, and in May 2012 a U.S. District Court judge, William H. Pauley III, agreed to dismiss the lawsuit after reading the briefing paper, finding that the details of the classified program were “inextricably intertwined” with the rest, so releasing it in redacted form was “neither feasible nor warranted.”