National Security
4:22 pm
Wed August 21, 2013

Secret Ruling Found NSA's Surveillance Violated Constitution

Originally published on Wed August 21, 2013 5:38 pm

Transcript

MELISSA BLOCK, HOST:

In 2011, the foreign intelligence surveillance court ruled that one part of the National Security Agency's monitoring of emails broke laws and violated the Constitution. Until now, that court ruling was classified, so we didn't know what exactly the NSA had done. But today, the court ruling was made public. We learned that the court found that tens of thousands of emails, collected by the NSA, had no connection to foreign suspects and were illegally intercepted.

Joining us now to talk about this is NPR's Tom Gjelten. And now, Tom, we have the FISA court opinion. What was the case about in the first place? What was it that the NSA did?

TOM GJELTEN, BYLINE: Melissa, there's one big rule governing this email surveillance program. It is that the NSA is not Supposed to collect any emails that are exclusively domestic, between U.S. persons or even involving foreigners who are in the U.S. Those are off limits. But the NSA, it turns out, did collect a bunch of those domestic emails, tens of thousands of them, in fact. Emails that apparently had nothing to do with terrorism and that the NSA had no business reading.

BLOCK: And what's the explanation for how that happened?

GJELTEN: It's a little bit technical. It involves a small portion of the email traffic the NSA was monitoring, less than 10 percent. These were emails that were monitored as they passed through these big channels to an Internet service provider - through fiber optic cables, for example.

And what happened is that whole bunches of those emails came bundled together, so when the NSA looked at them it was inevitably looking at some emails that it was not actually targeting.

BLOCK: OK, and how was this violation discovered?

GJELTEN: This was in 2011, as you say. And basically the NSA reported it voluntarily to the surveillance court. A senior intelligence official who discussed this today says, quote, "We rat on ourselves. And when we don't get it right, we fix it." But even so, the court was upset when it found this out. Let me read just one line from this court ruling, Melissa. It says...

(Reading) For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe.

So the court is saying it felt misled.

BLOCK: And it sounds like they're saying they were misled on multiple occasions. I'm looking at a footnote, Tom. The court is troubled that the government's revelations marked the third instance in less than three years. They're talking about a substantial misrepresentation regarding the scope of a major collection program.

GJELTEN: The court was upset.

BLOCK: Was the problem fixed, Tom, when the court pushed back on this?

GJELTEN: Yeah, apparently the NSA figured out a better way to strip out these domestic emails from the whole collection of them, enough to satisfy the court. But the court did rule that it was illegal of the NSA to have used those emails or to use them - the ones that were acquired in violation of the law. Actually, NSA had to purge its database of all those suspect emails.

BLOCK: And this goes back a couple of years. Why is the government releasing the court opinion now?

GJELTEN: Clearly it was feeling the heat created by this controversy over the surveillance program. Also, remember the president came out and said he wanted more transparency in the surveillance program. That's the reason for this. It is clear, however, that the intelligence community was not entirely happy about opening up this way. There was a feeling it could let the bad guys know too much about the way it gathers intelligence.

The intel official who briefed us said this is a case where the harm to national security from releasing these documents is outweighed by the public interest in seeing them.

BLOCK: OK. NPR's Tom Gjelten. Tom, thanks.

GJELTEN: You bet. Transcript provided by NPR, Copyright NPR.