According to a senior U.S. official, the government has declassified the order by the Foreign Intelligence Surveillance Court that authorized the collection program, which began in 2007. Before that, the National Security Agency had been collecting telephone records without a court order since shortly after the terrorist attacks of Sept. 11, 2001.
The now declassified order is expected to be made public Wednesday when Deputy Attorney General James Cole, NSA Deputy Director John Inglis and other officials are slated to appear before the Senate Judiciary Committee.
Former NSA contractor Edward Snowden disclosed the program in June by giving the Guardian newspaper and The Washington Post a secondary order from the foreign intelligence court directed at one company, Verizon. The primary order has more details, the official said, including the rules about when the database of phone records may be queried.
Since Snowden's disclosures, administration officials have been engaged in intense internal debates over how much information about the program and the secret orders of the foreign intelligence court should be released to the public. National security officials have resisted many proposals to declassify information on the program, arguing that virtually any information about it could potentially be used by terrorist groups to evade U.S. surveillance. Other administration officials have argued that Congress could kill the entire program if the administration fails to reassure the public about how the information is gathered and what protections are in place for privacy.
In addition to the court order from 2007, administration officials are also planning to release two white papers on the telephone-data program that were provided to Congress in 2009 and 2011 before the House and Senate voted to reauthorize the law behind it, the senior official said, speaking on condition of anonymity because he was not authorized to be quoted.
The white papers summarized the program, made clear that it included "bulk collection," and instructed the intelligence committees to provide the papers in a classified setting to all members of Congress, the official said. The release of those papers is intended to make clear that Congress had the opportunity to be fully informed, despite protests in recent weeks from some members who said they didn't understand the extent of the records collection.
The administration is also mulling a plan to release the program's legal rationale, including a memorandum making the argument that the phone records of nearly every American can be considered "relevant to an investigation," under the Patriot Act. But that is still being debated, the official said.
The database includes so-called "telephony metadata," on nearly every American. The data includes records of calls for each telephone number, but not names, addresses or the contents of any communication, officials have said. Intelligence agencies query the database when they identify specific phone numbers that are believed to be linked to terrorist groups. Last year, 300 phone numbers were used to query the database, officials have said.
Amid polls showing public concern about NSA surveillance, key lawmakers are mulling various proposals designed to boost confidence, including changes to FISA. Some lawmakers want the phone companies, not NSA, to retain the data.
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