On Wednesday, the Department of Justice published three declassified documents on a new government website hosted on Tumblr called "IC (Intelligence Community) On The Record."

In a press call that preceded the release of the documents, three senior intelligence officials defended their record. The general counsel of the Office of the Director of National Intelligence, Robert Litt, portrayed the documents as evidence of an intelligence agency working within the rules and making few mistakes.

"This is not an egregious overreaching by a greedy agency seeking to spy on Americans," he said. "It's an inadvertent collection of a relatively small number of US person communications."

At least one of the documents, however, spent a fair amount of time criticizing the NSA for overreaching and changing its story.

The longest item is a previously secret October 2011 document from the Foreign Intelligence Surveillance Act Court (FISC) showing that the NSA "frequently and systematically violated" its own oversight requirements. The agency collected as many as 56,000 e-mails and communications by Americans with no connection to terrorism.

The federal judge authoring the opinion, FISC Judge John Bates, concluded that there is no way to know with certainty how far the government’s intelligence and surveillance capabilities have actually gone. In his 85-page opinion, Bates noted that his court originally approved the NSA's ability to capture a more limited and targeted amount of data.

“In conducting its review and granting those approvals, the Court did not take into account NSA’s acquisition of Internet transactions, which now materially and fundamentally alters the statutory and constitutional analysis,” the judge wrote.

The NSA was under court order to produce a public version of this particular document as a result of an Electronic Frontier Foundation lawsuit. The lawsuit was filed after Sen. Ron Wyden (D-OR) went public with knowledge of at least one violation in July 2012.

Bates also wrote that the NSA had been misleading about the scope of the NSA's surveillance program.

In the footnote to that section, he added:

The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. . . . Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”

“Meaningful review... is not feasible”

Later on in the October 2011 opinion, the judge notes:

Ninety percent of the approx 13.25 million total Internet transactions acquired by NSA through its upstream collection during the six month period works out to be approx. 11.9 million transactions. Those 11.9 million transactions would constitute the universe of SCTs [single communication transactions] acquired during the six month period, and .197 percent of that universe would be approx. 23k wholly domestic SCTs. Thus, NSA may be acquiring as many as 46,000 wholly domestic “about” SCTs each year, in addition to the 2,000-10,000 [multiple communication transactions] reference above. . . . In absolute terms, tens of thousands of non-target, protected communications annually is a very large number.

The government distinguishes between what it calls “single communication transactions” as well as “multiple communication transactions” (MCTs). The former represents a single e-mail or text message between two parties that is intercepted en route. By contrast, MCT represents a bulk of messages that transit collectively. At times, over-collection occurred because the NSA collects communications in bulk, and separating the e-mails of a particular target is a difficult task.

For example, when you pull up your smartphone and download your IMAP e-mail, synching what’s on your phone with what’s in your inbox, you’re probably collecting several messages at once. And even though the government might be interested in one of those messages, it collects and stores the other non-suspect messages as well.

How did the government realize that it was over-collecting—despite the fact that this data collection program had been going on for three years up until that point?

“[The NSA and the Department of Justice] were having a discussion and a light bulb went off in somebody's head and they said: ‘Oops, this may be a problem,’” Litt said on the press call. He was speaking in response to a question from a CNBC reporter.

Earlier, Litt said that the NSA “was not capable and is still not capable of breaking those down into separate e-mails.”

Judge Bates had a one last scathing conclusion: neither the NSA nor the Court has the ability to know with certainty how many Americans’ rights have been violated.

The sheer volume of transactions acquired by NSA through its upstream collection is such that any meaningful review of the entire body of the transactions is not feasible. As a result, the Court cannot know for certain the number of wholly domestic communications acquired through this collection, nor can it know the number of non-target communications acquired or the extent to which those communications are to or from United States persons or persons in the United States... Internet service providers are constantly changing their protocols and the services they provide and often give users the ability to customize how they use a particular service. As a result, it is impossible to define with any specificity the universe of transactions that will be acquired by NSA’s upstream collection at any point in the future.

Ultimately, the court ruled the "upstream collection" of millions of MCTs was constitutionally deficient and needed to be altered. Those "upstream" programs constitute about nine percent of the total Internet communications collected by the NSA. The newly released court document provides the most conclusive evidence of the NSA's overreach in its surveillance and demonstrates, in the government's own words, the vast scope of those programs.