The secret court that oversees government snooping took the Obama administration to task late last year, suggesting it created "a very serious Fourth Amendment issue" by violating rules the government itself had implemented regarding the surveillance of Americans.
According to top-secret documents made public by the Foreign Intelligence Surveillance Court – often referred to as the FISA court – the government admitted that, just days before the 2016 election, NSA analysts were violating surveillance rules on a regular basis. This pattern of overreach, coupled with the timing of the government’s disclosure, resulted in an unusually harsh rebuke of the administration’s practices and principles.
A former CBS journalist suing the federal government for allegedly spying on her said the documents prove the illegal snooping was pervasive and widely abused.
"Sources of mine have indicated that political players have increasingly devised premises to gather intel on political targets by wrapping them up in 'incidental' collection of foreigners, as if by accident," Sharyl Attkisson, who is pursuing a federal lawsuit the Department of Justice has tried to dismiss, told the Fox News Investigative Unit.
According to the FISA Court opinion, it was on September 26, 2016 that the government submitted an undisclosed number of "certifications" for the court to review. The review process was supposed to be completed within 30 days, or by October 26, 2016.
Just two days before that review was to be completed – and less than two weeks before the 2016 election – the government informed the court that NSA analysts had been violating rules, established in 2011, designed to protect the internet communications of Americans.
The NSA has suggested these were “inadvertent compliance lapses,” and points out that the agency "self-reported" these problems, meaning they were the ones to bring this issue to the attention of the court.
There was just one problem.
The violations that the government disclosed on October 24, 2016, were based on a report from the NSA's Inspector General that had been released 10 months earlier, in January 2016. This means that when the government submitted its certifications for review in September, they were likely aware of that IG report – but failed to mention the malpractice going on at the NSA.
The Court at the time blamed an institutional “lack of candor" for the government's failure to disclose that information weeks earlier, and gave the government until April 28, 2017, to come up with a solution. After failing to come to an agreement, the NSA announced that it was stopping the type of surveillance in question.
The so-called “lapses” among NSA staffers had to do with Section 702 of the Foreign Intelligence Surveillance Act, and the “upstream” surveillance of what the intelligence community refers to as “about” communications.
According to the NSA, Section 702 "allows the intelligence community to conduct surveillance on only specific foreign targets located outside the United States to collect foreign intelligence, including intelligence needed in the fight against international terrorism and cyber threats."
Upstream surveillance, according to the ACLU, was first disclosed by NSA leaker Edward Snowden, and “involves the NSA’s bulk interception and searching of Americans’ international internet communications — including emails, chats, and web-browsing traffic.”
Until the NSA stopped it, the “upstream” snooping program notified them directly if someone inside the U.S. composed an email that contained the email address of a foreign intelligence agent who was being monitored. According to an NSA declaration reportedly made during the Bush administration, these communications did not have to be to or from the foreign agent, they simply had to mention the email address.
According to the FISA Court documents just made public, the notifications sent to the NSA often led to the unmasking of American citizens caught up in monitoring. And as the court pointed out, many of the requests being made to unmask the Americans taking part in these communications were in direct violation of safeguards established by the Obama administration.
According to the FISA Court documents, so-called “minimization procedures” adopted in 2011 to curb unlawful surveillance “have prohibited use of U.S.-person identifiers to query the results of upstream Internet collections under Section 702.”
And, according to the government’s October 26, 2016 admission, “NSA analysts had been conducting such queries in violation of that prohibition, with much greater frequency than had been previously disclosed.”
The suspended surveillance program has been a target of fierce criticism from Republican and Democratic lawmakers, as well as journalists and even Snowden.
Sen. Rand Paul, R-Kentucky, told Fox & Friends on Wednesday that the “terrible” program was basically “a back doorway to sort of get at Americans' privacy without using a warrant.”
When the NSA announced it was stopping certain Section 702 activities, Senate Intelligence Committee member Ron Wyden, D-Oregon, said he had raised concerns for years “that this amounted to an end run around the Fourth Amendment.”
Snowden tweeted that the NSA’s actions represented “the most substantive of the post-2013 NSA reforms, if the principle is applied to all other programs.”
Attkisson, who sued to determine who had access to a government IP address that she says was discovered on her CBS work computer during a forensics exam, said she’s concerned the truth will never come out.
"I'm told by sources that it should only take a day or a week, at most, for the intel community to provide [lawmakers with] the details of which Americans, journalists and public officials were 'incidentally' surveilled, which ones were unmasked, who requested the unmaskings, when, and for what supposed purpose," Attkisson said. "Yet months have gone by. I’m afraid that as time passes, any evidence becomes less likely to persist."