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.
“As I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes,” Feinstein continued. “I believe, however, that the committee can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate. This should include more routine trips to NSA by committee staff and committee hearings at which all compliance issues can be fully discussed.”
Both Feinstein and Rogers said they were aware of previous failings.
“The Committee has been apprised of previous incidents, takes seriously each one, and uses the oversight and compliance regime to provide us insight into these operations and whether further adjustments must be made. The Committee does not tolerate any intentional violation of the law,” Rogers said. “Human and technical errors, like all of the errors reported in this story, are unfortunately inevitable in any organization and especially in a highly technical and complicated system like NSA.”
“By law, the Intelligence Committee receives roughly a dozen reports every year on FISA activities, which include information about compliance issues. Some of these reports provide independent analysis by the offices of the inspectors general in the intelligence community. The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee’s focus on those activities,” Feinstein said.
“The committee has been notified—and has held briefings and hearings—in cases where there have been significant FISA compliance issues. In all such cases, the incidents have been addressed by ending or adapting the activity,” she added.
Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) announced today that he would hold a hearing on the reports to “continue to demand honest and forthright answers from the intelligence community. ”
“The American people rely on the intelligence community to provide forthright and complete information so that Congress and the courts can properly conduct oversight. I remain concerned that we are still not getting straightforward answers from the NSA,” Leahy said. “…Using advanced surveillance technologies in secret demands close oversight and appropriate checks and balances, and the American people deserve no less than that.”
The only administration response to the latest revelations came in an interview State Department spokeswoman Jen Psaki gave to MSNBC today, where she was asked about the president’s claim last week that “what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s e-mails.”
“Remember that these programs are done with the goal of keeping the American people safe, also keeping people around the world safe. These are programs that many countries also participate in, many countries work with the United States on. And that is one of the top priorities when you’re the commander in chief,” said Psaki, who served as traveling press secretary on Obama’s 2012 campaign.
“So that is why these programs are in place. But, again, you heard the president talk about the importance of being open and transparent with the American people, and I know that that is something that is being reviewed and discussed internally we speak,” she added.
Meanwhile, the administration continued a charm offensive of sorts to convince Americans that they’re as transparent as can be as Alex Jole, civil liberties protection officer for the Office of the Director of National Intelligence, wrote a simplistic first-person, day-in-the-life-style op-ed for McClatchy-Tribune News Service.
“Explaining to the public how all of this comes together is important, but is hard to do because it involves sensitive information that adversaries could exploit to avoid detection. By definition, most intelligence work can’t be done openly. A fully transparent intelligence service, after all, could not be an effective one,” Joel wrote.
“It’s human nature for such secrecy to fuel suspicion and mistrust. People assume that when someone hides something, it’s because he’s doing something wrong. This natural suspicion is evident in the concerns about two programs that were recently disclosed.”
Joel proceeded to explain vast telephone metadata collection and surveillance on the communications of foreign targets outside the U.S.
“Some people question whether people who work for the government can be trusted. In my experience, intelligence professionals – and those overseeing them – are profoundly committed to the oath they take to support and defend the Constitution. People inside government have questions and concerns just like everyone else,” he wrote. “It’s my job to raise civil liberties and privacy issues about intelligence activities, and I do.”
A Washington Post-ABC News poll taken before the latest report found 70 percent of Democrats and 77 percent of Republicans agreeing that the NSA programs intrude on privacy rights. Fifty-two percent of GOPs and 51 percent of Dems said the mass surveillance is not justified.
UPDATE: White House deputy press secretary Josh Earnest released a statement saying the audit report is the result of Obama’s “long” advocacy for transparency at the NSA. “This Administration is committed to ensuring that privacy protections are carefully adhered to, and to continually reviewing ways to effectively enhance privacy procedures,” Earnest said.