The mantra from NSA chief Keith Alexander has been constant from the start: We are subject to oversight from all branches of government. New details of the agency's privacy violations reveal just how hollow that defense is.
"We are overseen by everybody," Alexander told a hacker conference in 2012, drawing out the last word in the sentence. It is a claim he repeated at the end of last month, after the Edward Snowden leaks, to another such convening.
I think it’s important to understand the strict oversight that goes into these programs because the assumption is that people are out there just wheeling and dealing, and nothing could be further from the truth. We have tremendous oversight and compliance in these programs, auditability.
"I think this is a standard for other countries," he continued, "because we have the court overseeing it, we have Congress overseeing it, we have the administration, and I’ll go into all the different parts of the administration that oversees it."
Thursday's reports from The Washington Post and new revelations about a depleted intelligence advisory panel would suggest otherwise.
Perhaps the most remarkable aspect of the Post's reporting was the assessment provided by Judge Reggie Walton, presiding judge on the Foreign Intelligence Surveillance Court, the secret body tasked with authorizing the NSA and FBI's requests for data collection.
"The FISC is forced to rely upon the accuracy of the information that is provided to the Court," [Walton] said in a written statement to The Washington Post. "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."
At the same time, the Post reported that the NSA had, on several occasions, withheld information that it was supposed to provide. Such as when the agency made a mistake with telephone area codes.
In one instance, the NSA decided that it need not report the unintended surveillance of Americans. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a programming error confused the 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.
And then there's the document leaked by Edward Snowden to the Post that instructs analysts on trimming down the rationales for searches that are provided to oversight agencies. "While we do want to provide our FAA [Foreign Intelligence Surveillance Act amendments] overseers with the information they need," it reads, "we DO NOT want to give them any extraneous information." That extraneous information includes the logic that led up to the request.
In October 2011, the FISC did determine based on the NSA's reports of its activity, that the agency had violated the Fourth Amendment. That ruling, which remains classified, necessitated changes to how the agency conducted its searches.
The heart of the Post's reporting was a top secret NSA memo from May 2012 which documented the hundreds of times that the agency had acted outside its legal boundaries in collecting information on American citizens.
In December of last year, the FISA amendments came up for renewal. One would assume that Congress was informed about the violations contained in the report from seven months earlier, using that information to inform its decisions — but it's not clear that it was.
Senator Dianne Feinstein chairs the Senate Intelligence Committee. She has been a staunch and unrelenting champion of the NSA's surveillance. When the Post asked her to comment on the May 2012 memo, her response was revealing. She had not received a copy of the report, but said her committee "can and should do more to independently verify that NSA's operations are appropriate, and its reports of compliance incidents are accurate." The committee isn't reliant on leaked memos for its understanding of NSA behavior; the agency provides quarterly assessments of violations to Congress. But Feinstein's response to seeing the document in full is markedly different in tone than her past statements.
Just this morning, House Minority Leader Nancy Pelosi weighed in. Calling the Post report "extremely disturbing," she insisted that "Congress must conduct rigorous oversight to ensure that all incidents of non-compliance are reported to the oversight committees and the FISA court in a timely and comprehensive manner."
But these violations are not new. At the end of last month, the Director of National Intelligence declassified two letters issued from his office to members of Congress. The letters, which were only available to Congressmembers in a certain location for a brief time, include mentions of "a number of technical compliance problems and human implementation errors," though the FISC hadn't found "any intentional or bad-faith violations." This is how the NSA shielded its errors to the Congress at large: a sweeping overview of the problems buried on page four of a letter that was by no means easy to review.
By the way, the FISA amendments were renewed on a three-to-one vote in the Senate.
In his first attempt to tamp down outrage over the NSA's behavior, the president last week announced an review panel tasked with assessing the government's intelligence tools.
But he already had a panel of intelligence advisors — one that, as Politico reports, Obama has allowed to wither.
The President’s Intelligence Advisory Board stood 14 members strong through 2012, but the White House website was recently updated to show the panel’s roster shrinking to just four people. …
“I’m sort of surprised because I follow this very closely. … Four people down from 14 — I can see why this is raising your eyebrows,” said Michael Desch, head of Notre Dame’s political science department and co-author of “Privileged and Confidential: The Secret History of the President’s Intelligence Advisory Board.”
“If this is as it appears, this is pretty remarkable,” Desch said. “The PIAB doesn’t look fully staffed. … This does look strange.”
Members of Congress pointed to the existence of advisory groups like this one in criticizing the president's announcement last week. (The roll-out of the new review panel has also been bumpy.) But the short version of the story is this: the internal checks-and-balances of the administration are skeletal.
Even the internal oversight improvement efforts of the NSA — also a part of the executive branch — haven't yielded much in the way of results. The Post:
Despite the quadrupling of the NSA’s oversight staff after a series of significant violations in 2009, the rate of infractions increased throughout 2011 and early 2012. An NSA spokesman declined to disclose whether the trend has continued since last year.
Only the NSA knows for sure. Even assuming no ill intent — as the president and members of Congress do — the argument that the NSA is subject to robust oversight has fallen almost completely apart. We once asked if we could ever know how and when the NSA violated the law. Without Snowden's leaks, perhaps even Congress wouldn't have.
And once you take away robust oversight from the legislature, the court, and independent members of the administration — Alexander's quote reads quite differently.
This article is from the archive of our partner The Wire.