Lawbreaking at the NSA: Bring On a New Church Committee

The Washington Post has revealed an audit documenting thousands of abuses per year. An exhaustive investigation is long overdue -- and Ron Wyden should lead it.
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The time is ripe for a new Church Committee, the surveillance oversight effort named for Senator Frank Church, who oversaw a mid-1970s investigation into decades of jaw-dropping abuses by U.S. intelligence agencies. If recent stories about the NSA don't alarm you, odds are that you've never read the Church Committee findings, which ought to be part of the standard high-school curriculum. Their lesson is clear: Under cover of secrecy, government agents will commit abuses with impunity for years on end, and only intrusive Congressional snooping can stop them.

Why is another Church Committee needed now? For more than a decade, the NSA has repeatedly engaged in activity that violated the law and the Constitutional rights of many thousands or perhaps millions of Americans.

Let's review the NSA's recent history of serial illegality. President George W. Bush presided over the first wave. After the September 11 terrorist attacks, he signed a secret order that triggered a massive program of warrantless wiretapping. NSA analysts believed they possessed the authority to spy on the phone calls and emails of American citizens without a judge's permission. Circa October 2001, 90 NSA employees knew about the illegal program, but the public didn't. Later that month, four members of Congress, including Nancy Pelosi, were told of its existence, and subsequently discredited White House lawyer John Yoo wrote the first analysis of its legality. By 2002, 500 people knew about it, at which point telecom providers were participating.

The public didn't find out about warrantless wiretapping until December 2005, more than four years after it started, when the New York Times published a story that they'd long been holding

How effective was the illegal spying?

"In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the FBI in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month," The New York Times reported in a January 2006 followup article. "But virtually all of them, current and former officials say, led to dead ends or innocent Americans. FBI officials repeatedly complained to the spy agency, which was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of foreign-related phone and Internet traffic, that the unfiltered information was swamping investigators. Some FBI officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy."

On July 9, 2008, telecom companies that participated in illegal warrantless wiretapping were granted retroactive immunity in a bill that Senator Barack Obama supported, despite a promise to oppose it.

Soon after, the Obama Administration took power.

On April 15, 2009, The New York Times reported on abuses in the NSA's surveillance activities (emphasis added):

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews. Several intelligence officials... said the N.S.A. had been engaged in "overcollection" of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional... The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

That July, an unclassified report produced by the inspectors general of five federal agencies "had difficulty citing specific instances when the National Security Agency's wiretapping program contributed to successes against terrorists," and "found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information." The CIA found it "a useful tool but could not link it directly to counterterrorism successes."

Team Obama pressed on anyway.

Skip ahead to Edward Snowden's revelations, which began earlier this summer. The Obama Administration has insisted all along that Snowden wasn't able to document abuses because there aren't any. That claim was always dubious. As I noted earlier this week, the Obama Administration itself had already admitted that legal violations occurred, though it did so in the most vague terms. As of Monday, when I published my article, there was already enough documented bad behavior and official dissembling about surveillance to justify a sweeping investigation.

Now any member of Congress who doesn't press for an investigation is behaving indefensibly, for the Washington Post has just reported that the NSA violated the law on a much larger scale than anyone admitted. Its report shows that current oversight is laughably inadequate, and includes enough details to suggest that multiple NSA defenders have been lying in their public statements.

What would justify a Congressional investigation if not all that? If you're still not persuaded, recall the claims made by the Obama Administration alongside the latest scoops by Barton Gellman and Carol Leonnig. Team Obama's case has been straightforward: there are not NSA abuses, and adequate oversight is being conducted by all three branches of the U.S. government.

Now look at the facts reported Thursday evening:

  • "The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008."
  • "Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order."
  • "In one instance, the NSA decided that it need not report the unintended surveillance of Americans."
  • "In another case, the Foreign Intelligence Surveillance Court, which has authority over some NSA operations, did not learn about a new collection method until it had been in operation for many months. The court ruled it unconstitutional."
  • "The NSA audit obtained by The Post, dated May 2012, counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, access to or distribution of legally protected communications. 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."

This is a good place to pause. Note that the 2,776 incidents of illegal surveillance don't mean that just 2,766 people had their rights violated -- in just a single one of those 2,776 incidents, 3,000 people had their rights violated. As the story notes, "There is no reliable way to calculate from the number of recorded compliance issues how many Americans have had their communications improperly collected, stored or distributed by the NSA." And that is another reason an intrusive Congressional investigation into these practices is urgently necessary.

What possible objection could there be to nailing down the number of Americans whose rights were violated? I'd like someone to explain how that could possibly make us less safe from al-Qaeda.

Here's something else I'd like to see investigated:

The causes and severity of NSA infractions vary widely. One in 10 incidents is attributed to a typographical error in which an analyst enters an incorrect query and retrieves data about U.S phone calls or e-mails.

Does anyone else find it implausible that 10 percent of errors are due to typos? And even if that's true, are you telling me there's no way to eliminate typos when the consequences are intrusive spying in violation of the law and the Constitution? I find it hard to imagine how anyone isn't on board for a Congressional investigation at this point, but just in case, get this next part (emphasis added):

The May 2012 audit, intended for the agency's top leaders, counts only incidents at the NSA's Fort Meade headquarters and other ­facilities in the Washington area. Three government officials, speak­ing on the condition of anonymity to discuss classified matters, said the number would be substantially higher if it included other NSA operating units and regional collection centers.

That brings us to the head of the Senate intelligence committee, who has sworn all along that she engages in thorough oversight of NSA surveillance, and that large-scale abuses just don't happen:

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a copy of the 2012 audit until The Post asked her staff about it, said in a statement late Thursday 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."

The newspaper got its hands on the audit -- more than a year after the fact -- before she did! And the trend? "Despite the quadrupling of the NSA's oversight staff after a series of significant violations in 2009," Gellman reports, "the rate of infractions increased throughout 2011 and early 2012."

There is a lot more to his article, which everyone should read in full. I'll excerpt just one more passage:

The NSA uses the term "incidental" when it sweeps up the records of an American while targeting a foreigner or a U.S. person who is believed to be involved in terrorism. 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.

Suffice it to say that the scale of actual NSA abuses is substantially hidden. An alarming number of communications are being illegally collected. But the truth could turn out to be shocking even to people who've been following this story closely. An investigation is the only way to find out.

The average member of Congress knows far less than Feinstein, and the only other check on the NSA, the FISA court, also provides inadequate oversight, according to the man in charge of it:

The leader of the secret court that is supposed to provide critical oversight of the government's vast spying programs said that its ability do so is limited and that it must trust the government to report when it improperly spies on Americans.

The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government's surveillance breaks the court's rules that aim to protect Americans' privacy. Without taking drastic steps, it also cannot check the veracity of the government's assertions that the violations its staff members report are unintentional mistakes.

All told, it's an airtight case for dramatically more oversight. Senator Ron Wyden has long led the lonely effort in his body to expose NSA abuses, and he is the natural choice to lead both an investigation and a Wyden Committee Report to Study Intelligence Activities in the War on Terror. Were there any justice in the world, Feinstein would be kept far away from the effort.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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