Latest Release of Documents on N.S.A. Includes 2004 Ruling on Email Surveillance

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

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 Obama. 

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

The email
metadata — information like the identities of senders and
recipients and the 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”

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

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

In a statement, James R. Clapper Jr.,
the director of national intelligence, said that with the new
releases, nearly 2,000 pages about surveillance matters had been
declassified since President 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

“Release of these documents reflects
the executive branch’s continued commitment to making information
about this intelligence collection program publicly available when
appropriate and consistent with the national security of the United
States,” he said. 

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

“Here, the government’s interest is the
most compelling imaginable: the defense of the nation in wartime
from attacks that may take thousands of lives,” said the Justice
Department brief, which was signed by Alberto Gonzales, who was
then attorney general. “On the other side of the ledger, the
intrusion is minimal” into privacy concerns because the calling
logs did not include any content of

The documents
show that as early as 2006, an inspector general review recommended
tighter controls over the bulk telephone metadata program to reduce
the risk that they would violate the limits on the collection of
data. In 2009, the court would sharply
rebuke the N.S.A
. for violating its own procedures and
misleading the nation’s intelligence court about how it used the
telephone call logs. 

Jameel Jaffer,
a senior lawyer with the A.C.L.U., argued that the release of the
documents demonstrated what he argued were structural problems with
the surveillance court, which decides major

“This is a reminder a lot of the most
important and far-reaching decisions of the past decade were issued
by this court, which meets in secret and hears only from the
government and doesn’t publish its decisions,” Mr. Jaffer

The full scope and details of any
revelations in the documents were not immediately clear because of
the large volume of materials and the late hour at which they
became available. It appeared likely to take days for journalists,
privacy advocates and other close watchers of surveillance policy
issues to finish scouring the

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