Secret Rules Let NSA Keep U.S. Data Without Warrant

FORT MEADE, Md., June 21 (UPI) – The National Security Agency may keep Americans’ emails and phone calls if they’re “believed to contain significant foreign intelligence,” secret papers show.

The world’s largest spy agency may also keep U.S. citizens and legal residents’ domestic communications if NSA analysts believe the communications could suggest evidence of a crime, the documents published Friday by British newspaper The Guardian and The Washington Post indicated.

Neither determination requires a surveillance warrant.

If the NSA cannot determine people’s locations, analysts are free to assume the people are overseas, one document said.

President Obama said after the initial disclosures of the electronic eavesdropping two weeks ago NSA domestic activities “do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents, absent further action by a federal court, that is entirely consistent with what we would do, for example, in a criminal investigation.”

But Obama was evidently leaving out what NSA officials have long called “incidental” collection of Americans’ calls and emails, or the routine capture of domestic U.S. communications in the process of targeting foreign communications, The Guardian and Post said.

The new documents, published in full by the two newspapers, indicate the NSA collects, processes, retains and disseminates the contents of Americans’ phone calls and emails under a wide range of circumstances.

They can be seen at tinyurl.com/First-Document and tinyurl.com/Second-Document.

The documents — both dated July 29, 2009, with one classified “Top Secret,” the other labeled “Secret” and both signed by Attorney General Eric Holder — detail the circumstances in which data collected on “U.S. persons” under the foreign intelligence authority must be destroyed.

But they also outline policies approved by the U.S. Foreign Intelligence Surveillance Court that let the NSA — while monitoring the phone or email of a foreign diplomat or a suspected terrorist — keep an intercept if it contains information deemed to be a “threat of serious harm to life or property” or if it sheds light on technical issues like encryption or vulnerability to cyberattacks.

The NSA is a cryptologic intelligence agency of the Defense Department.

The policies also let the NSA keep “foreign intelligence information” contained within attorney-client communications, one of the documents says.

The attorney-client privilege is one of the oldest recognized privileges for confidential communications.

“A communication identified as a domestic communication will be destroyed upon recognition unless the Director (or Acting Director) of NSA specifically determines, in writing, that the communication is reasonably believed to contain significant foreign intelligence information,” the file identified by United Press International as the Second Document says.

“Such communication may be provided to the Federal Bureau of Investigation (FBI) (including United States person identities) for possible dissemination by the FBI in accordance with its minimization procedures,” the document says.

The documents also show discretion as to who is actually targeted under the NSA’s foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors.

Some targeting decisions are reviewed on a regular basis by internal audit teams, the documents indicate.

The White House, Justice Department, Defense Department and NSA had no immediate comment on the latest disclosures.