The NSA searches its mass database of phone records without real judicial oversight. [View all]

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The NSA searches its mass database of phone records without real judicial oversight. That’s unacceptable.

4. Does the NSA have to get prior court approval for each query?

No. Rep. Adam Schiff, D-Calif., asked, “Every time you make the query, does that have to be approved by the court?” Cole answered, “We do not have to get separate court approval for each query. … We don't go back to the court each time.” Cole noted that the judges, up front, “set out the standards for us to use,” including the “reasonable suspicion” standard. But “we don't give the reasonable suspicion to the court ahead of time.”

Rep. Mike Rogers, R-Mich., the chairman of the House Intelligence Committee, didn’t like the oversight gap Schiff had exposed. Rogers has repeatedly assured Americans that the data are kept in a “lockbox.” To shore up this story, Rogers stepped in with a friendly question for Cole: “My understanding, though, is that every access is already pre-approved; that the way you get into the system is court-approved. Is that correct?” Cole replied: “That's correct. The court sets out the standards which have to be applied to allow us to make the query in the first place.”

In other words, the court categorically pre-approves all queries that meet the “reasonable, articulable suspicion” standard. The NSA then applies that standard as it sees fit. No presentation of evidence to the court is required.

6. Does the NSA submit each query for court review afterward?
No. Schiff asked: “Does the court scrutinize, after you present back to the court, ‘These are the occasions where we found reasonable and articulable facts’? Do they scrutinize your basis for conducting those queries?” Cole replied, “Yes, they do.” But a few minutes later, Cole corrected himself: “The FISC does not review each and every ‘reasonable, articulable suspicion’ determination. What does happen is they are given reports every 30 days in the aggregate. And if there are any compliance issues, if we found that it wasn't applied properly, that's reported separately to the court.”

Schiff pressed for clarification: “I just want to make sure I understood what you just said. A prior court approval is not necessary for a specific query, but when you report back to the court about how the order has been implemented, you do set out those cases where you found reasonable, articulable facts and made a query. Do you set out those with specificity, or you just say, ‘On 15 occasions we made a query'?’” Cole answered: “It's more the latter, the aggregate number where we've made a query. And if there's any problems that have been discovered, then we, with specificity, report to the court those problems.”

Cole and other officials said the queries are tightly documented and reviewed by the Department of Justice. But the bottom line is that the executive branch reports to the court only those cases which the administration itself has flagged as possible abuses.

http://www.slate.com/articles/technology/technology/2013/06/warrantless_searches_the_court_oversight_of_nsa_phone_surveillance_is_a.single.html