WASHINGTON — A pair of civil-liberties Democrats whom the White House tried to appease in a closed-door meeting warned today that fresh reports of thousands of privacy violations by the National Security Agency are just the “tip of a larger iceberg.”
On Thursday, the Washington Post published its report of a May 2012 audit leaked by former contractor Edward Snowden that found 2,776 violations over the previous year of executive orders and Foreign Intelligence Surveillance Act provisions governing spying on Americans or foreign targets in the U.S. These included both computer and operator errors.
Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) have been some of President Obama’s harshest critics — within his party and outside — on domestic spying. They were among allies and foes of the NSA programs summoned by Obama to the Oval Office at the beginning of the month as he hoped to calm his detractors before promising new, vague reforms.
“The executive branch has now confirmed that the ‘rules, regulations and court-imposed standards for protecting the privacy of Americans’ have been violated thousands of times each year. We have previously said that the violations of these laws and rules were more serious than had been acknowledged, and we believe Americans should know that this confirmation is just the tip of a larger iceberg,” Wyden and Udall said in a joint statement this afternoon.
“While Senate rules prohibit us from confirming or denying some of the details in today’s press reports, the American people have a right to know more details about of these violations. We hope that the executive branch will take steps to publicly provide more information as part of the honest, public debate of surveillance authorities that the Administration has said it is interested in having.”
A week ago, Wyden carefully lauded Obama’s promised reforms unveiled in a press conference just before he took off to Martha’s Vineyard for vacation. The senator stressed, though, that “notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act.”
“I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy,” Wyden said Aug. 9.
Today, he and Udall said “the public deserves to know more about the violations of the secret court orders that have authorized the bulk collection of Americans’ phone and email records under the USA PATRIOT Act.”
“The public should also be told more about why the Foreign Intelligence Surveillance Court has said that the executive branch’s implementation of section 702 of the Foreign Intelligence Surveillance Act has circumvented the spirit of the law, particularly since the executive branch has declined to address this concern,” they continued.
Sen. Richard Blumenthal (D-Conn.), who last month introduced the FISA Court Reform Act of 2013 and the FISA Judge Selection Reform Act of 2013, said the latest revelations underscored the need for “a special advocate who can push the FISA Court to hold NSA accountable, and uncover illegal over-reaching.”
“Changes in selection of the Court judges can make it a more effective watchdog. The audit reveals a disregard or disrespect for Constitutional privacy rights that undermines public trust and credibility so essential for intelligence activities that protect our national security,” Blumenthal said. “Even as reforms progress, the Justice Department should investigate and pursue possible violations of law as appropriate.”
But the leaders of the intelligence committees held fast to their support for the NSA programs.
“The disclosed documents demonstrate that there was no intentional and willful violation of the law and that the NSA is not collecting the email and telephone traffic of all Americans, as previously reported,” asserted House Permanent Select Committee on Intelligence Chairman Mike Rogers (R-Mich.).
“Congress and the court have put in place auditing, reporting, and compliance requirements to help ensure that the executive branch, the Congress, and the Court each have insight into how the authorities granted to the NSA are used. As a result, even the inadvertent and unintentional errors are documented,” he continued. “We demand these reviews so the NSA can constantly improve and correct any technical missteps that may impact Americans.”
Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) dismissed a “large majority of NSA’s so-called ‘compliance incidents’” as “roaming” incidents, in which a non-American whose phone is being monitored outside the United States wanders onto U.S. soil.
“The NSA generally won’t know that the person has traveled to the United States. As the laws and rules governing NSA surveillance require different procedures once someone enters the U.S.—generally to require a specific FISA court order—NSA will cite this as a ‘compliance incident,’ and either cease the surveillance or obtain the required FISA court order. The majority of these ‘compliance incidents’ are, therefore, unintentional and do not involve any inappropriate surveillance of Americans,” Feinstein said.