NSA Began Warrantless Surveillance Without Congressional Approval

The National Security Agency began its warrantless surveillance program without Congressional approval, spying on emails and phone calls of foreign targets months before the passage of the Protect America Act in August 2007, newly declassified documents show.

The documents were released to New York Times reporter Charlie Savage through a FOIA lawsuit. Savage reported on the new information Tuesday. They reveal two orders from May and August 2007 from federal judge Roger Vinson, who was then serving on the Foreign Intelligence Surveillance Court, allowing the NSA to carry out secret wiretaps and setting the course for newer, broader interpretations of the Foreign Intelligence Surveillance Act (FISA) that would allow the surveillance program to grow in scope and power for years.

Further, the documents show the ambiguous standards of the program that allowed it to stretch the court's definitions of "targets" and, at times, work backwards after a wiretap had been carried out to prove that probable cause requirements had been met.

Savage writes:

[Vinson] approved continued surveillance on a long list of accounts that were already under watch, while signing off on a process that allowed the N.S.A. to systematically begin monitoring new phone numbers and email addresses without waiting for judicial approval.

Instead, the government would compile lists of all its new targets and its reasons for going after them, which it would show to the court in weekly reports. The court would then make after-the-fact findings that the probable cause requirements had been met for those, too.

The order also acknowledges that some domestic communications may be "inadvertently" acquired in the surveillance process. In those cases, the NSA should "minimize the review" of those phone calls and emails, if they do not "contain foreign intelligence information or evidence of a crime."

Vinson's August order noted that Judges George Kazen, John Bates, Dee Benson, Frederick Scullin and Colleen Kollar-Kotelly, who also served on the court, were concerned over the extent of the NSA's knowledge of its surveillance targets.

"Roving wiretaps are reserved for investigations in which the accounts... are 'unknown' at the time of the order," Savage writes. "But Judge Vinson insisted that it was acceptable for the N.S.A. to use the power to target accounts it already knew about, too, so long as analysts had not yet completed the process of 'connecting the dots' until after the application for the order."

Vinson's May order expired on August 24, 2007 and was not renewed. But by that point, the Protect America Act--which allowed the NSA to continue the warrantless surveillance it had already been engaged in--was passed by Congress and signed into law by President George W. Bush.