The NSA Documents, An Introduction

Rather than starting with what I—or anyone else—think and believe about the remarkable cache of documents the intelligence community declassified yesterday, I thought we should begin with a detailed account of what these documents actually are and the story they tell, individually and collectively.

The press stories that follow a document release like this often do not bother to do this. They look, instead, for a key—or the key—fact, around which the news story then develops. In this case, unsurprisingly, the key fact is that the NSA gathered tens of thousands of email communications by Americans before the FISA Court declared its actions unconstitutional. As the Washington Post puts it in its lead:

For several years, the National Security Agency unlawfully gathered tens of thousands of e-mails and other electronic communications between Americans as part of a now-revised collection method, according to a 2011 secret court opinion.

The redacted 85-page opinion, which was declassified by U.S. intelligence officials on Wednesday, states that, based on NSA estimates, the spy agency may have been collecting as many as 56,000 “wholly domestic” communications each year.

Yet the story these documents tell is actually complicated. It involves a fascinating, iterative back-and-forth over many months between the executive branch and the FISA Court. It involves remarkable self-reporting by the executive branch—both to the court and to the Congress. It involves a court that looks anything like a rubber stamp. It involves a significant rebuke by that court to the government both for the substance of its activities and for the accuracy of a series of representations it had made in the past. And it involves a swift effort by the government to correct the problem—one that within a few weeks the court accepted.

The series of the posts that follows offers a quick and dirty summary of the three FISA Court opinions at issue and the explanations the government gave of the matter in question to Congress. At least for now, we are keeping commentary on the documents to a minimum, though I certainly have thoughts on many aspects of them—about which I will write separately.

Editor’s Note: For more on the NSA Documents, read subsequent posts at the links below or by visiting the Lawfare blog »

Part II: The October 2011 FISC Opinion
Part III: The November 2011 FISC Opinion
Part IV: The September 2012 FISC Opinion
Part V: The Communications with Congress
Part VI: The 2011 Minimization Procedures
Part VII: The Compliance Report