President Barack Obama, although recently suggesting he would be open to discussion about some reforms to National Security Agency surveillance policies, has maintained that the United States has laws, which “specifically prohibit” the government from “surveilling US persons without a warrant. And there are a whole range of safeguards that have been put in place to make sure that that basic principle is abided by.”
The president has suggested that the public is wrong to think the NSA is somehow “out there willy-nilly just sucking in information on everybody and doing” what it pleases with it. However, documents provided to The Washington Post by NSA whistleblower Edward Snowden indicate that thousands of privacy violations have occurred.
A May 2012 audit from the NSA shows 2,776 incidents of “unauthorized collection, storage, access to or distribution of legally protected communications” occurred.
Journalist Barton Gellman reported, “Most were unintended. Many involved failures of due diligence or violations of standard operating procedure. The most serious incidents included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card holders.”
The audit, which was apparently only produced for senior officials in the agency, did not include incidents that occurred outside of NSA’s headquarters at Fort Meade. The number of violations would be much higher if all “NSA operating units and regional collection centers” had been part of the audit.
A “violation” is a term of art in the NSA. According to Gellman, when the NSA “sweeps up the records of an American while targeting a foreigner or a US person who is believed to be involved in terrorism, that is not a “violation” of privacy, but rather incidental.
Official guidelines for NSA personnel say that kind of incident, pervasive under current practices, “does not constitute a . . . violation” and “does not have to be reported” to the NSA inspector general for inclusion in quarterly reports to Congress. Once added to its databases, absent other restrictions, the communications of Americans may be searched freely.
Therefore, the surveillance is more “willy-nilly” than Obama might lead Americans to believe. Many, many, many violations can be justified by simply claiming it was an “incident” in the process of tracking suspected terrorists. (Like wartime deaths of civilians are called “collateral damage,” at the NSA, wartime surveillance of innocent Americans could be considered collateral spying.)
There were two remarkable incidents apparently highlighted in the audit: a “large number” of “calls placed from Washington” were intercepted “when a programming error confused U.S. area code 202 for 20, the international dialing code for Egypt, according to a ‘quality assurance’ review that was not distributed to the NSA’s oversight staff.” Another incident occurred when the Foreign Intelligence Surveillance court was not informed of a “new collection method” until it had been in use by the NSA “for many months.” (That method was declared unconstitutional by the court.)
The violations exposed by Snowden’s whistleblowing once again show how government officials were being misleading, outright lying, or as Director for National Intelligence Director James Clapper might put it, providing the “least untruthful” answers to Congress. Deputy Attorney General James Cole said in congressional testimony, “Every now and then, there may be a mistake.”
Sen. Dianne Feinstein, a Democrat who chairs the Senate Intelligence Committee and is supposed to conduct oversight of the NSA, has defended surveillance saying, “The information goes into a database, the metadata, but cannot be accessed without what’s called, and I quote, ‘reasonable, articulable suspicion’ that the records are relevant and related to terrorist activity.”
But, according to Gellman’s story, she was unaware of this 2012 audit documenting privacy violations until the Post contacted her about the audit to get a comment from her. She told the Post late Thursday “the committee ‘can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate.’”
That the NSA does internal audits, which members of Congress are not allowed to read or which are kept secret from Congress members, speaks volumes about the true nature of government surveillance.
NSA Director Gen. Keith B. Alexander has claimed to NSA employees:
A report issued by the Senate Judiciary in June 2012 emphasized that the government has implemented its intelligence authorities in a responsible manner: “Through four years of oversight, the committee has not identified a single case in which a government official engaged in willful effort to circumvent or violate the law.”
Because of this audit, one can understand that Alexander is parsing words, as he typically does, and emphasizing the fact that there has been no willful violation. That will likely be the defense the NSA puts forward—these are mere incidents where employees had no intention to conduct surveillance of Americans.
It is clear that officials like Alexander are deliberately misleading in their remarks because, to admit that so many Americans’ communications were actually intercepted in the process, would call into question the processes and procedures being followed.
Another story from the Post, which nicely complements Gellman’s report, features the chief FISA court judge Reggie Walton stating, “The FISC is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”
In other words, the ability of the FISA court to restrain government power when it comes to surveillance is limited. It is not the amazing check on executive power, which defenders of the NSA want Americans to believe.
This reality also is compounded by the fact that only one party argues before the court: the government. There is no lawyer or counsel representing civil liberties of Americans, who is there to argue against requests for authorized surveillance.
Finally, as Snowden is demeaned for his decision to remain in Russia and not come back and face trial in the United States (where he would not be able to make any public interest defense at all), this is but another example of how he is a whistleblower who should be lauded and protected for showing the abuses of power and duplicity of government officials when it comes to the operation of unchecked and likely unconstitutional surveillance programs.