NSA Failed to Fully Inform FISC Even After It Started Fact-Checking Itself

On Friday, I described how, for four years after the FISA Court ruled that NSA couldn’t keep otherwise unlawfully collected information from a single traditional FISA order, the NSA continued to do just that with data from 702 orders.

Hogan was [] surprised to learn NSA was doing the same thing — and had been! — with Section 702 data that had otherwise been purged, which the NSA confessed to Hogan in July of last year. That is, having stopped the practice with a single traditional FISA order, they kept doing it with programmatic 702 data.

In light of the May 2011 [redacted], the Court was very surprised to learn from the July 13, 2015 Notice that the NSA had not been deleting from [redacted] Section 702 records placed on the NSA’s Master Purge List (“MPL”).

[snip]

As the Court explained to the government at the October 8 Hearing, it expects the government to comply with its heightened duty of candor in ex parte proceedings at all times. Candor is fundamental to this Court’s effective operation in considering ex parte submissions from the government, particularly in matters involving large and complex operations such as the implementation of Section 702.

That’s pathetic, given the history of material misstatements to FISC.

All the more so given that it happened after NSA implemented an effort to make sure it started telling FISC the truth (the date is redacted, but it probably happened sometime between October 2011 and March 2013).

As laid out in a 2013 reissue of a 2012 NSA IG report (this report starts at PDF 55; Charlie Savage liberated this via FOIA), NSA implemented a fact-checking process on its own FISC submissions. (See PDF 101)

Screen Shot 2016-04-25 at 9.15.54 AM

NSA is hiding when they first started fact-checking themselves, but it happened by March 2013. Which means the 2013 and 2014 702 recertification submissions were fact-checked. “The [Verification of Accuracy] procedures require all factual statements within the declarations to be verified.” Yet neither told FISC that NSA continued to retain communications from selectors on the Master Purge List in a management database two and three years after the time (at that point) FISC had told NSA, in an order titled, “Opinion and Order Requiring Destruction of Information Obtained by Unauthorized Electronic Surveillance,” it could not do so, not even with data unlawfully obtained on a single targeted FISA order. It took another year before NSA confessed to FISC it was keeping 702 data that should have been purged.

Perhaps the continued discovery of three to four violations every time NSA submits its recertification process reflects the slow implementation of fact-checking. Or perhaps there are just too many databases in which willing NSA employees can stash information before it gets purged off all the other databases.

But if the VoA was supposed to “increase confidence” in what NSA says to courts and Congress, it’s not clear how continuing to miss things like ongoing retention of unlawfully collected information does that.

Related posts on the November 6, 2015 reauthorization opinion

The NSA Has Never Not Been Violating FISA Since It Moved Stellar Wind to FISA in 2004

The Government Admits 9 Defendants Spied On Under Section 702 Have Not Gotten FISA Notice

Former Top Holder Aide Says Back Door Searches Violate Fourth Amendment; FISC Judge Thomas Hogan Doesn’t Care

FBI’s Back Door Searches: Explicit Permission … and Before That
Last July, NSA and CIA Decided They Didn’t Have to Follow Minimization Procedures, and Judge Hogan Is Cool with That

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Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

4 replies
  1. Hieronymus Howard says:

     
    The VoA screenshot is a funny snippet.  Thanks for that, Marcy.
     
    VoA = Verification of Absurdity
     
    CHBL = Couldn’t help but laugh

  2. martin says:

    Ya know emptywheel, even beyond the lying, obfuscation, doublespeak and gimmicks of the DNI and the disregard of various FISC judges, given you show day after day, week after week, year after year the criminal performance of the NSA, to see Congress’s lack of interest to do anything about it but send letters asking the same damn thing James Clapper lied to Wyden about, and has still refused for YEARS to answer, confirms to me either the NSA has become exactly what the author of Verges latest article on the matter says….
    quote:”It’s enough to make you wonder if the organs of government are fundamentally no longer able to hold these agencies accountable, leaving them to operate as miniature authoritarian claques embedded in a nominally democratic state, slowly leaching power and legitimacy from the elected officials they claim to serve.”unquote

    The organs of government are fundamentally no longer able to hold these agencies accountable. Well sooprise sooprise sooprise. Jim Garrison tried to tell us in 1967, Senator’s Pike and Church in 1978, to which Church also WARNED us. No one listened..and now we’ve hit the bottom of the Surveillance State abyss. Unfortunately..like he said..it’s too LATE to do anything now.

  3. martin says:

    opps..didn;t finish…
    quote: “……..confirms to me EITHER the NSA has become exactly what the author of Verges latest article on the matter says….”

    (snip)
    ……or they are blackmailing every Congress and FISC schmuck who tries to do anything.

    I believe it is the latter.

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