There's one statement that the president made on The Tonight Show Tuesday night that's worth paying particular attention to. The president told host Jay Leno that the Snowden leaks hasn't shown that the government abused its surveillance powers. Maybe not, but that doesn't mean the government hasn't abused them.
[W]hat I said as soon as it happened I continue to believe in, which is a lot of these programs were put in place before I came in. I had some skepticism, and I think we should have a healthy skepticism about what government is doing. I had the programs reviewed. We put in some additional safeguards to make sure that there’s federal court oversight as well as congressional oversight, that there is no spying on Americans.
We don’t have a domestic spying program. What we do have are some mechanisms where we can track a phone number or an email address that we know is connected to some sort of terrorist threat. And that information is useful. But what I’ve said before I want to make sure I repeat, and that is we should be skeptical about the potential encroachments on privacy. None of the revelations show that government has actually abused these powers, but they’re pretty significant powers.
It's easy to read a lot into off-the-cuff comments from a person appearing on television. But that last sentence is remarkable. "None of the revelations show that government has actually abused these powers, but they’re pretty significant powers."
Well, no, that's true. They don't. But if the president is trying to therefore imply that the government hasn't abused the powers, that's up for debate. At least according to documents released not by Edward Snowden, but by the government.
One of the first motivators for additional scrutiny on the NSA's surveillance was a letter received by Senator Ron Wyden of Oregon last year. In that letter, the director of legislative affairs for the office of the Director of National Intelligence revealed that the Foreign Intelligence Surveillance Court or FISC, the body that authorizes NSA surveillance, had in fact found Constitutional violations in the NSA's behavior.
The Director of National Intelligence revealed similar transgressions in documents he declassified last week. Among those documents was a 2009 letter to Congress, which explained that the surveillance process included "a number of technical compliance problems and human implementation errors" in the surveillance tools — but none resulting from "intentional or bad-faith violations."
Of course, the nature of the tools is that they are designed to absorb as much information as possible, or, as NSA chief Keith Alexander once put it, to "collect it all." To do that, the NSA has relied on flexible interpretations of the law. National security reporter Marc Ambinder suggested Tuesday night on Twitter that the instinct to collect as much as possible may be what resulted in the FISC's critique of the programs.
For those following #NSA files: PINWHALE isn’t the same thing as Pinuale. One is X-KEYSCORE’s ancestor. The other is a DNI content database.— Marc Ambinder (@marcambinder) August 7, 2013
The 2009 abuses/over collects were a defect of PINWHALE. Not enough or robust enough safeguards to prevent snooping on US persons.— Marc Ambinder (@marcambinder) August 7, 2013
In other words, Ambinder argues that the NSA overstepped its bounds in collecting data on Americans — perhaps resulting in the FISC determination mentioned in the letter to Wyden.
No, the Snowden revelations haven't specifically shown "that government has actually abused these powers." The government, however, probably has.