WASHINGTON — In the face of growing skepticism over the National Security Agency's practice of collecting bulk phone and Internet records, the director of national intelligence on Saturday declassified several documents detailing the program.
The latest declassification of documents comes during a week in which a federal judge ruled the NSA's bulk collection was likely unconstitutional and a White House task force questioned the effectiveness of the program.
Director of National Intelligence James Clapper said in a statement announcing the release that President George W. Bush first authorized the spying in October 2001, as part of the Terrorist Surveillance Program, weeks after the Sept. 11 attacks.
"President Bush issued authorizations approximately every 30-60 days," Clapper said. "Although the precise terms changed over time, each presidential authorization required the minimization of information collected concerning American citizens to the extent consistent with the effective accomplishment of the mission of detection and prevention of acts of terrorism within the United States. NSA also applied additional internal constraints on the presidentially-authorized activities."
Approval for the bulk collection was eventually shifted to the Foreign Surveillance Intelligence Court, a secret court that considers government requests for electronic surveillance for intelligence-gathering purposes.
The documents released include legal arguments by two former national intelligence directors under Bush — Dennis Blair and Mike McConnell — who state their legal case for why it was essential to keep secret the practice of bulk data collection. The unclassified documents are part of an ongoing court case that was filed in 2006.
"These are among the most important intelligence tools the NSA uses, and they have never been officially confirmed or denied by the United States," McConnell offers in his argument. "Disclosing or confirming these activities would seriously undermine an essential tool for tracking possible terrorist plots and would help foreign adversaries evade detection."
But in recent days, both advisers of President Obama and a Bush appointed federal judge have offered very different assessments about the utility and legality of the practice.
U.S. District Court Judge Richard Leon ruled on Monday on a lawsuit brought by conservative activist Larry Klayman that the legal challenge to the massive surveillance program — disclosed in full earlier this year by former NSA contractor Edward Snowden — would likely succeed.
"The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim (of unlawful search and seizure), and that they will suffer irreparable harm absent…relief,'' wrote Leon, who was appointed to the bench by Bush.
The task force Obama appointed in August to review the NSA surveillance program and recommend changes concluded in their report — which was made public on Wednesday — that the data collection program was "not essential to preventing attacks."
Before leaving for his two-week Hawaii vacation on Friday, Obama said he and his aides were evaluating all of the recommendations by the five-member panel, and that he would offer a response to their suggestions in January. He hinted that that changes to the bulk data collections could be coming.
"The question we're going to have to ask is can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that, in fact, the NSA is doing what it's supposed to be doing," Obama said. "I have confidence in the fact that the NSA is not engaging in domestic surveillance or snooping around, but I also recognize that as technologies change and people can start running algorithms and programs that map out all the information that we're downloading on a daily basis into our telephones and our computers."
The president added, "We may have to refine this further to give people more confidence. "