Report: Court lets NSA use data snagged 'inadvertently'

Kevin Johnson | USA TODAY

WASHINGTON — Rules governing a recently disclosed surveillance program targeting non-U.S. citizens abroad appear to give National Security Agency analysts broad discretion in determining who qualifies for such scrutiny, according to two new classified documents published Thursday by The Guardian.

Without "specific information'' about whether the target is an American, and if the person's location is unknown, the target will be "presumed a non-U.S. citizen'' and subject to surveillance, according to one of the documents.

The White House declined to comment on the new disclosures. And the NSA did not immediately respond to a request for comment.

A second document outlines authority for government officials to retain communications by U.S. citizens that are inadvertently intercepted if the material contains "foreign intelligence'' or "evidence of crime.''

The Guardian report suggested that the retention provision contradicts recent assertions by government officials who claim that all such inadvertent communications are routinely destroyed.

But Deputy Attorney General James Cole, in testimony Tuesday before the House Intelligence Committee, specifically referred to the government's "limited'' authority to keep communications involving Americans. "If it has to do with foreign intelligence ... or evidence of a crime or threat of serious bodily injury, we can respond to that,'' Cole told lawmakers. "Other than that, we have to get rid of it. We have to purge it, and we can't use it.''

Both documents published by the London newspaper are dated July 29, 2009, and carry the signature of Attorney General Eric Holder. The Justice Department also declined comment Thursday.

The Guardian's disclosures are the first since the newspaper and The Washington Post revealed details of the formerly secret program and a separate operation that collects the telephone records of U.S. citizens for use in terror investigations.

Since then, President Obama and congressional leaders have defended the practices, asserting they were vital to national security.

But civil liberties advocates maintain that the operations are serious breaches of privacy and lack adequate controls.

"Collectively, these documents show ... that the legal framework under which the NSA operates is far too feeble, that existing oversight mechanisms are ineffective, and that the government's surveillance policies now present a serious and ongoing threat to our constitutional rights,'' ACLU staff attorney Alex Abdo said. "The release of these documents will help inform a crucial public debate that should have taken place years ago."