The New York Times reports: For Edward J. Snowden, the former National Security Agency contractor who has acknowledged leaking numerous documents about American surveillance operations around the world, the path to a sudden departure from Hong Kong late Sunday began over a dinner days before of a large pizza, fried chicken and sausages, washed down with Pepsi.

Albert Ho, one of Mr. Snowden’s lawyers, said that before the Tuesday night dinner began, Mr. Snowden insisted that everyone hide their cellphones in the refrigerator of the home where he was staying, to block any eavesdropping. Then began a two-hour conversation during which Mr. Snowden was deeply dismayed to learn that he could spend years in prison without access to a computer during litigation over whether he would be granted asylum here or surrendered to the United States, Mr. Ho said.

Staying cooped up in the cramped Hong Kong home of a local supporter was less bothersome to Mr. Snowden than the prospect of losing his computer.

“He didn’t go out, he spent all his time inside a tiny space, but he said it was O.K. because he had his computer,” Mr. Ho said. “If you were to deprive him of his computer, that would be totally intolerable.”

The outcome of that meeting, Mr. Ho said, was a decision by Mr. Snowden to have Mr. Ho pose two questions to the Hong Kong government: would he be released on bail if he were detained in Hong Kong at the request of the United States, and would the Hong Kong government interfere if Mr. Snowden tried to go to the airport and leave Hong Kong instead.

A person with detailed knowledge of the Hong Kong government’s deliberations said that the government had been delighted to receive the questions. Leung Chun-ying, the chief executive, and his top advisers had been struggling through numerous meetings for days, canceling or postponing most other meetings, while trying to decide what to do in response to an American request for Mr. Snowden’s detention, even as public opinion in Hong Kong seemed to favor protecting the fugitive.

USA Today reports: NSA leaker Edward Snowden says he took his job with the National Security Agency for the sole purpose of obtaining evidence on Washington’s cyberspying networks, the South China Morning Post reported Monday.

Snowden, who was in Hong Kong before fleeing to Moscow this weekend, told the newspaper that he sought a position as an analyst with the consulting firm Booz Allen Hamilton so he could collect proof about the NSA’s secret surveillance program ahead of planned leaks to the media.

“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” he told the Post in a June 12 interview that was published Monday. “That is why I accepted that position about three months ago.”

In his interview with the Post, Snowden divulged information that he claimed showed hacking by the NSA into computers in Hong Kong and mainland China.

“I did not release them earlier because I don’t want to simply dump huge amounts of documents without regard to their content,” he said. “I have to screen everything before releasing it to journalists.”

Asked by the Post if he specifically went to Booz Allen Hamilton as a computer systems administrator to gather evidence of surveillance, he replied: “Correct on Booz.”

His intention was to collect information about the NSA hacking into “the whole world” and “not specifically Hong Kong and China,” he said.

David Sirota writes: Two weeks into the hullaballoo surrounding whistleblower Edward Snowden and Guardian reporter Glenn Greenwald, one thing is clear: they did not just reveal potentially serious crimes perpetrated by the government — including possible perjury, unlawful spying and unconstitutional surveillance. They also laid bare in historic fashion the powerful double standards that now define most U.S. media coverage of the American government — the kind that portray those who challenge power as criminals, and those who worship it as heroes deserving legal immunity. Indeed, after “Meet the Press” host David Gregory’s instantly notorious performance yesterday, it is clear Snowden’s revelations so brazenly exposed these double standards that it will be difficult for the Washington press corps to ever successfully hide them again.

The best way to illustrate these double standards are through 10 simple questions.

1. During that “Meet the Press” discussion yesterday of Greenwald publishing stories about Snowden’s disclosures, Gregory asked Greenwald, “Why shouldn’t you, Mr. Greenwald, be charged with a crime?” Beyond the odiousness of a supposed journalist like Gregory seeming to endorse criminal charges against journalists for the alleged crime of committing journalism, there’s an even more poignant question suggested by Mother Jones’ David Corn: Why hasn’t David Gregory asked reporters at the Washington Post, the Associated Press and Bloomberg News the same question, considering their publication of similar leaks? Is it because Greenwald is seen as representing a form of journalism too adversarial toward the government, while those establishment outlets are still held in Good Standing by Washington?

2. Trevor Trimm of the Freedom of the Press Foundation asks a question that probably won’t be asked of Gregory: Should Gregory himself be prosecuted? After all, as Trimm notes, “when interviewing Greenwald, he repeated what government officials told him about classified FISA opinions.” So will anyone of Gregory’s stature in Washington go on national television and ask if Gregory should now be charged with a crime?

3. Later during “Meet the Press’” discussion of Greenwald’s reporting, NBC’s Chuck Todd demanded to know “How much was (Greenwald) involved in the plot?…What was his role — did he have a role beyond simply being a receiver of this information? And is he going to have to answer those questions?” Why did Todd not ask that same question of reporters at Washington Post, the Associated Press and Bloomberg News? Again, is it because Greenwald is seen as representing a form of journalism too adversarial toward the government, while those establishment outlets are still held in Good Standing by Washington?

It has to be a source of embarrassment — even humiliation — that the biggest story in Washington in years, gets broken by a foreign newspaper. All those journalists — from Bob Woodward downwards — who for decades have built their careers around their possession of privileged access to the government’s most senior officials, have spent much of the last three weeks recycling information that first appeared in The Guardian. They are bound to feel as though their power has been usurped. Even worse, it’s been usurped by a pesky blogger who doesn’t even live in DC.

Valerie Plame Wilson and Joe Wilson write: Let’s be absolutely clear about the news that the NSA collects massive amounts of information on US citizens – from emails, to telephone calls, to videos, under the Prism program and other Fisa court orders: this story has nothing to do with Edward Snowden. As interesting as his flight to Hong Kong might be, the pole-dancing girlfriend, and interviews from undisclosed locations, his fate is just a sideshow to the essential issues of national security versus constitutional guarantees of privacy, which his disclosures have surfaced in sharp relief.

Snowden will be hunted relentlessly and, when finally found, with glee, brought back to the US in handcuffs and severely punished. (If Private Bradley Manning’s obscene conditions while incarcerated are any indication, it won’t be pleasant for Snowden either, even while awaiting trial.) Snowden has already been the object of scorn and derision from the Washington establishment and mainstream media, but, once again, the focus is misplaced on the transiently shiny object. The relevant issue should be: what exactly is the US government doing in the people’s name to “keep us safe” from terrorists?

Prism and other NSA data-mining programs might indeed be very effective in hunting and capturing actual terrorists, but we don’t have enough information as a society to make that decision. Despite laudable efforts led by Senators Ron Wyden and Mark Udall to bring this to the public’s attention that were continually thwarted by the administration because everything about this program was deemed “too secret”, Congress could not even exercise its oversight responsibilities. The intelligence community and their friends on the Hill do not have a right to interpret our rights absent such a discussion. [Continue reading…]

Reuters reports: A former U.S. security contractor charged by Washington with espionage was allowed to leave Hong Kong on Sunday, his final destination not confirmed, because a U.S. request to have him arrested did not comply with the law, the Hong Kong government said.

Edward Snowden, who worked for the National Security Agency, had been hiding in Hong Kong since leaking details about U.S. surveillance activities to news media.

The United States wanted him to be extradited to face trial and is likely to be furious about reports that he was travelling to Moscow on Sunday before flying on to Cuba and Venezuela.

“It’s a shocker,” said Simon Young, a law professor with Hong Kong University. “I thought he was going to stay and fight it out. The U.S. government will be irate.”

A source at Russia’s Aeroflot airline said Snowden would fly from Moscow to Cuba on Monday and then planned to go on to Venezuela. The South China Morning Post earlier said his final destination might be Ecuador or Iceland.

The WikiLeaks anti-secrecy website said it helped Snowden find “political asylum in a democratic country”.

It added in an update on Twitter that he was accompanied by diplomats and legal advisers and was travelling via a safe route for the purposes of seeking asylum.

“The WikiLeaks legal team and I are interested in preserving Mr Snowden’s rights and protecting him as a person,” former Spanish judge Baltasar Garzon, legal director of WikiLeaks and lawyer for the group’s founder Julian Assange, said in a statement. [Continue reading…]

Updates following Snowden’s arrival in Moscow.

The Guardian reports: Within hours of news breaking that the US had filed charges against Snowden, the South China Morning Post reported that the whistleblower had handed over a series of documents to the paper detailing how the US had targeted Chinese phone companies as part of a widespread attempt to get its hands on a mass of data.

Text messaging is the most popular form of communication in mainland China where more than 900bn SMS messages were exchanged in 2012.Snowden reportedly told the paper: “The NSA does all kinds of things like hack Chinese cellphone companies to steal all of your SMS data.”

The paper said Snowden had also passed on information detailing NSA attacks on China’s prestigious Tsinghua University, the hub of a major digital network from which data on millions of Chinese citizens could be harvested.

As Snowden made his latest disclosures, the US issued an extradition request to Hong Kong and piled pressure on the territory to respond swiftly. “If Hong Kong doesn’t act soon, it will complicate our bilateral relations and raise questions about Hong Kong’s commitment to the rule of law,” a senior Obama administration official said.

Snowden appeared to be gaining support from politicians in Hong Kong who said China should support him against any extradition application from the US, which on Friday charged him under its Espionage Act. One legislator, Leung Kwok-hung, said Beijing should issue instructions to protect Snowden from extradition before his case was dragged through the courts. Leung urged the Hong Kong people to “take to the streets to protect Snowden”. Another politician, Cyd Ho, vice-chairwoman of the pro-democracy Labour party, said China “should now make its stance clear to the Hong Kong SAR [Special Administrative Region] government” before the case goes before a court.

The Observer reports: Senior figures inside British intelligence have been alarmed by GCHQ’s secret decision to tap into transatlantic cables in order to engage in the bulk interception of phone calls and internet traffic.

According to one source who has been directly involved in GCHQ operations, concerns were expressed when the project was being discussed internally in 2008: “We felt we were starting to overstep the mark with some of it. People from MI5 were complaining that they were going too far from a civil liberties perspective … We all had reservations about it, because we all thought: ‘If this was used against us, we wouldn’t stand a chance’.”

The Guardian revealed on Friday that GCHQ has placed more than 200 probes on transatlantic cables and is processing 600m “telephone events” a day as well as up to 39m gigabytes of internet traffic. Using a programme codenamed Tempora, it can store and analyse voice recordings, the content of emails, entries on Facebook, the use of websites as well as the “metadata” which records who has contacted who. The programme is shared with GCHQ’s American partner, the National Security Agency.

The Guardian reports: Britain’s European partners have described reports of Britain’s surveillance of international electronic communications as a catastrophe and will seek urgent clarification from London.

Sabine Leutheusser-Schnarrenberger, the German justice minister said the report in the Guardian read like the plot of a film.

“If these accusations are correct, this would be a catastrophe,” Leutheusser-Schnarrenberger said in a statement to Reuters. “The accusations against Great Britain sound like a Hollywood nightmare. The European institutions should seek straight away to clarify the situation.”

Glenn Greenwald writes: The US government has charged Edward Snowden with three felonies, including two under the Espionage Act, the 1917 statute enacted to criminalize dissent against World War I. My priority at the moment is working on our next set of stories, so I just want to briefly note a few points about this.

Prior to Barack Obama’s inauguration, there were a grand total of three prosecutions of leakers under the Espionage Act (including the prosecution of Dan Ellsberg by the Nixon DOJ). That’s because the statute is so broad that even the US government has largely refrained from using it. But during the Obama presidency, there are now seven such prosecutions: more than double the number under all prior US presidents combined. How can anyone justify that?

For a politician who tried to convince Americans to elect him based on repeated pledges of unprecedented transparency and specific vows to protect “noble” and “patriotic” whistleblowers, is this unparalleled assault on those who enable investigative journalism remotely defensible? Recall that the New Yorker’s Jane Mayer said recently that this oppressive climate created by the Obama presidency has brought investigative journalism to a “standstill”, while James Goodale, the General Counsel for the New York Times during its battles with the Nixon administration, wrote last month in that paper that “President Obama will surely pass President Richard Nixon as the worst president ever on issues of national security and press freedom.” Read what Mayer and Goodale wrote and ask yourself: is the Obama administration’s threat to the news-gathering process not a serious crisis at this point?

Few people – likely including Snowden himself – would contest that his actions constitute some sort of breach of the law. He made his choice based on basic theories of civil disobedience: that those who control the law have become corrupt, that the law in this case (by concealing the actions of government officials in building this massive spying apparatus in secret) is a tool of injustice, and that he felt compelled to act in violation of it in order to expose these official bad acts and enable debate and reform.

But that’s a far cry from charging Snowden, who just turned 30 yesterday, with multiple felonies under the Espionage Act that will send him to prison for decades if not life upon conviction. In what conceivable sense are Snowden’s actions “espionage”? He could have – but chose not – sold the information he had to a foreign intelligence service for vast sums of money, or covertly passed it to one of America’s enemies, or worked at the direction of a foreign government. That is espionage. He did none of those things. [Continue reading…]

The Guardian reports: Any attempt by the US to extradite the NSA whistleblower Edward Snowden from Hong Kong for espionage could take years and be blocked by China, legal experts have said.

The warning comes after it emerged on Friday that the US has charged Snowden with theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence to an unauthorised person. The latter two charges are part of the US Espionage Act.

Legislators in Hong Kong responded by calling for mainland China to intervene in the case. Snowden, 29, who is reportedly in hiding in Hong Kong, was last seen on 10 June. He is understood to have made contact with human rights lawyers in anticipation of a legal action from the US.

The US and Hong Kong have had an extradition treaty since 1998, a year after Hong Kong was transferred from British to Chinese rule. Scores of Americans have been sent back for trial under the treaty.

While espionage and theft of state secrets are not cited specifically in the treaty, equivalent charges could be pressed against Snowden under Hong Kong’s official secrets ordinance, legal experts said.

The timeframe for such proceedings remains unclear, but Hectar Pun, a barrister with human rights expertise, said such an extradition could take three to five years.

The Guardian reports: Britain’s spy agency GCHQ has secretly gained access to the network of cables which carry the world’s phone calls and internet traffic and has started to process vast streams of sensitive personal information which it is sharing with its American partner, the National Security Agency (NSA).

The sheer scale of the agency’s ambition is reflected in the titles of its two principal components: Mastering the Internet and Global Telecoms Exploitation, aimed at scooping up as much online and telephone traffic as possible. This is all being carried out without any form of public acknowledgement or debate.

One key innovation has been GCHQ’s ability to tap into and store huge volumes of data drawn from fibre-optic cables for up to 30 days so that it can be sifted and analysed. That operation, codenamed Tempora, has been running for some 18 months.

GCHQ and the NSA are consequently able to access and process vast quantities of communications between entirely innocent people, as well as targeted suspects.

This includes recordings of phone calls, the content of email messages, entries on Facebook and the history of any internet user’s access to websites – all of which is deemed legal, even though the warrant system was supposed to limit interception to a specified range of targets.

The existence of the programme has been disclosed in documents shown to the Guardian by the NSA whistleblower Edward Snowden as part of his attempt to expose what he has called “the largest programme of suspicionless surveillance in human history”.

“It’s not just a US problem. The UK has a huge dog in this fight,” Snowden told the Guardian. “They [GCHQ] are worse than the US.” [Continue reading…]

The Washington Post reports: Federal prosecutors have filed a sealed criminal complaint against Edward Snowden, the former National Security Agency contractor who leaked a trove of documents about top-secret surveillance programs, and the United States has asked Hong Kong to detain him on a provisional arrest warrant, according to U.S. officials.

Snowden was charged with espionage, theft and conversion of government property, said the officials, who spoke on the condition of anonymity because they were not authorized to speak about the case.

The complaint was filed in the Eastern District of Virginia, a jurisdiction where Snowden’s former employer, Booz Allen Hamilton, is headquartered and a district with a long track record of prosecuting cases with national security implications.

Bloomberg Businessweek reports: In 1940, a year before the attack on Pearl Harbor, the U.S. Navy began to think about what a war with Germany would look like. The admirals worried in particular about the Kriegsmarine’s fleet of U-boats, which were preying on Allied shipping and proving impossible to find, much less sink. Stymied, Secretary of the Navy Frank Knox turned to Booz, Fry, Allen & Hamilton, a consulting firm in Chicago whose best-known clients were Goodyear Tire & Rubber and Montgomery Ward. The firm had effectively invented management consulting, deploying whiz kids from top schools as analysts and acumen-for-hire to corporate clients. Working with the Navy’s own planners, Booz consultants developed a special sensor system that could track the U-boats’ brief-burst radio communications and helped design an attack strategy around it. With its aid, the Allies by war’s end had sunk or crippled most of the German submarine fleet.

That project was the start of a long collaboration. As the Cold War set in, intensified, thawed, and was supplanted by global terrorism in the minds of national security strategists, the firm, now called Booz Allen Hamilton, focused more and more on government work. In 2008 it split off its less lucrative commercial consulting arm—under the name Booz & Co.—and became a pure government contractor, publicly traded and majority-owned by private equity firm Carlyle Group. In the fiscal year ended in March 2013, Booz Allen Hamilton reported $5.76 billion in revenue, 99 percent of which came from government contracts, and $219 million in net income. Almost a quarter of its revenue—$1.3 billion—was from major U.S. intelligence agencies. Along with competitors such as Science Applications International Corp., CACI, and BAE Systems, the McLean (Va.)-based firm is a prime beneficiary of an explosion in government spending on intelligence contractors over the past decade. About 70 percent of the 2013 U.S. intelligence budget is contracted out, according to a Bloomberg Industries analysis; the Office of the Director of National Intelligence says almost a fifth of intelligence personnel work in the private sector.

It’s safe to say that most Americans, if they’d heard of Booz Allen at all, had no idea how huge a role it plays in the U.S. intelligence infrastructure. They do now. On June 9, a 29-year-old Booz Allen computer technician, Edward Snowden, revealed himself to be the source of news stories showing the extent of phone and Internet eavesdropping by the National Security Agency. Snowden leaked classified documents he loaded onto a thumb drive while working for Booz Allen at an NSA listening post in Hawaii, and he’s promised to leak many more. After fleeing to Hong Kong, he’s been in hiding. (He didn’t respond to a request for comment relayed by an intermediary.)

The attention has been bad for Booz Allen’s stock, which fell more than 4 percent the morning after Snowden went public and still hasn’t recovered. Senator Dianne Feinstein (D-Calif.), who chairs the Select Committee on Intelligence, has called for a reexamination of the role of private contractors in intelligence work and announced she’ll seek to restrict their access to classified information. Booz Allen declined to comment on Snowden beyond its initial public statement announcing his termination.

The firm has long kept a low profile—with the federal government as practically its sole client, there’s no need for publicity. It does little, if any, lobbying. Its ability to win contracts is ensured by the roster of intelligence community heavyweights who work there. The director of national intelligence, James Clapper — President Obama’s top intelligence adviser — is a former Booz Allen executive. The firm’s vice chairman, Mike McConnell, was President George W. Bush’s director of national intelligence and, before that, director of the NSA. Of Booz Allen’s 25,000 employees, 76 percent have classified clearances, and almost half have top-secret clearances. In a 2003 speech, Joan Dempsey, a former CIA deputy director, referred to Booz Allen as the “shadow IC” (for intelligence community) because of the profusion of “former secretaries of this and directors of that,” according to a 2008 book, Spies for Hire: The Secret World of Intelligence Outsourcing. Today Dempsey works for Booz Allen. [Continue reading…]

Reuters reports: President Barack Obama will meet on Friday with members of a privacy oversight watchdog board to try to reassure Americans rattled by revelations of the U.S. government’s vast monitoring of phone and Internet data.

Obama is scrambling to show he has credibility on the issue after coming under fire for the scope of surveillance conducted by the National Security Agency, which was revealed in a series of disclosures by former government contractor Edward Snowden.

The Associated Press reports: The obscure oversight board that President Barack Obama wants to scrutinize the National Security Agency’s secret surveillance system is little known for good reason. The U.S. Privacy and Civil Liberties Oversight Board has operated fitfully during its eight years of low-profile existence, stymied by congressional infighting and, at times, censorship by government lawyers.

The privacy board was to meet Wednesday, its first meeting since revelations that the NSA has been secretly collecting the phone records of millions of Americans. The meeting will be closed to the public.

The board has existed since 2004, first as part of the executive branch, then, after a legislative overhaul that took effect in 2008, as an independent board of presidential appointees reporting to Congress. But hindered by Obama administration delays and then resistance from Republicans in Congress, the new board was not fully functional until May, when its chairman, David Medine, finally was confirmed.

Obama’s sudden leaning on the board as a civil libertarian counterweight to the government’s elaborate secret surveillance program places trust in an organization that is untested and whose authority at times still defers to Congress and government censors.

“They’ve been in startup mode a long time,” said Sharon Bradford Franklin, a senior counsel at the Constitution Project, a bipartisan civil liberties watchdog group. “With all the concerns about the need for a debate on the issue of surveillance, this is a great opportunity for them to get involved.”

It was not clear how much classified information would be discussed at Wednesday’s meeting. As late as April 2012, the board’s incoming chairman did not have a security clearance and the board did not have the classified, secure meeting area that is necessary to review and discuss classified government material.

The board’s five appointees recently got security clearances, said Franklin, who attended the new group’s first two meetings in October and March. “The first thing they can do is push for more disclosure and a more well-rounded picture of the surveillance programs,” she said.

By Justin Elliott, ProPublica, June 20, 2013

In defending the NSA’s sweeping collection of Americans’ phone call records, Obama administration officials have repeatedly pointed out how it could have helped thwart the 9/11 attacks: If only the surveillance program been in place before Sept. 11, 2001, U.S. authorities would have been able to identify one of the future hijackers who was living in San Diego.

Last weekend, former Vice President Dick Cheney invoked the same argument.

It is impossible to know for certain whether screening phone records would have stopped the attacks — the program didn’t exist at the time. It’s also not clear whether the program would have given the NSA abilities it didn’t already possess with respect to the case. Details of the current program and as well as NSA’s role in intelligence gathering around the 9/11 plots remain secret.  

But one thing we do know: Those making the argument have ignored a key aspect of historical record.

U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al Mihdhar, long before 9/11 and had the ability find him, but they failed to do so.

Continue reading →

The Guardian reports: Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information “inadvertently” collected from domestic US communications without a warrant.

The Guardian is publishing in full two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009. They detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

The procedures cover only part of the NSA’s surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.

The Fisa court’s oversight role has been referenced many times by Barack Obama and senior intelligence officials as they have sought to reassure the public about surveillance, but the procedures approved by the court have never before been publicly disclosed. [Continue reading…]

Senators Mark Udall and Ron Wyden, who serve on the U.S. Senate Select Committee on Intelligence, issued the following statement responding to comments made by members of the Intelligence Community about the value of certain NSA surveillance programs:

“Over the past few days the Intelligence Community has made new assertions about the value of recently declassified NSA surveillance programs. In addition to the concerns that we have about the impact of large-scale collection on the civil liberties of ordinary Americans, we are also concerned that the Foreign Intelligence Surveillance Act (FISA) Section 702 collection program (which allows collection of phone or internet communications, and involves the PRISM computer system) and the bulk phone records collection program operating under Section 215 of the USA PATRIOT ACT are being conflated in a way that exaggerates the value and usefulness of the bulk phone records collection program.

“Based on the evidence that we have seen, it appears that multiple terrorist plots have been disrupted at least in part because of information obtained under section 702 of FISA. However, it appears that the bulk phone records collection program under section 215 of the USA Patriot Act played little or no role in most of these disruptions. Saying that ‘these programs’ have disrupted ‘dozens of potential terrorist plots’ is misleading if the bulk phone records collection program is actually providing little or no unique value.

“The Intelligence Community notes that the massive collection of phone records under Section 215 has provided some relevant information in a few terrorism cases, but it is still unclear to us why agencies investigating terrorism do not simply obtain this information directly from phone companies using a regular court order. If the NSA is only reviewing those records that meet a ‘reasonable suspicion’ standard, then there is no reason it shouldn’t be able to get court orders for the records it actually needs. Making a few hundred of these requests per year would clearly not overwhelm the FISA Court. And the law already allows the government to issue emergency authorizations to get these records quickly in urgent circumstances. The NSA’s five-year retention period for phone records is longer than the retention period used by some phone companies, but the NSA still has not provided us with any examples of instances where it relied on its bulk collection authority to review records that the relevant phone company no longer possessed.

“In fact, we have yet to see any evidence that the bulk phone records collection program has provided any otherwise unobtainable intelligence. It may be more convenient for the NSA to collect this data in bulk, rather than directing specific queries to the various phone companies, but in our judgment convenience alone does not justify the collection of the personal information of huge numbers of ordinary Americans if the same or more information can be obtained using less intrusive methods.

“If there is additional evidence for the usefulness of the bulk phone records collection program that we have not yet seen, we would welcome the opportunity to review it.”