The latest leaks by Edward Snowden of National Security Agency intelligence gathering has cast fresh doubt on the administration’s assurances that the NSA operates under full oversight and there’s nothing to worry about. And just in case there is something to worry about, we’ll be watching them even more closely in the future.
Now, it seems that NSA violations of citizens’ privacy rights are not merely the bad dreams of civil libertarians or the ignoble aspersions of America-haters on the loose. According to an audit conducted by the NSA itself, it broke privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008. Most cases involved unauthorized surveillance of U.S. citizens or foreign intelligence targets in the United States, both of which are outside the agency’s purview.
In response, the official machinery of investigation is being cranked up. Senate Judiciary Committee Chairman Patrick Leahy announced he would hold hearings on the matter, to try to obtain “straightforward answers from the NSA,” which he said we might not have been getting.
This should help the administration keep its promise to initiate reforms in NSA oversight, such as the inclusion of an adversary function in the Foreign Intelligence Surveillance Court (FISA) to give the public interest formal representation in its proceedings.
Media outcry and senatorial threats are all welcome. They are the necessary throat-clearings of the process of correction in a democratic society.
But at this point, we suggest taking a deep breath and looking again at the revelations. The NSA audit in May 2012 listed 2,776 incidents in the prior 12 months of unauthorized collection, storage, access to or distribution of legally protected communications.
In a reply to critics, Michael Hayden, former director of the National Security Agency, noted that “fully two-thirds of the incidents were comprised of ‘roamers’ — legitimately targeted foreigners who were temporarily in the U.S. (and thus temporarily protected by the Fourth Amendment).”
A lot of it is indeed trivial, on the order of magnitude of typographical error. According to the documents, in one quarter there were 115 incidents of queries incorrectly entered. “That’s 115 out of 61 million inquiries, a compliance rate of 99.9998 percent,” Hayden points out. “All of the incidents were inadvertent; no one claims that any rules were intentionally violated. All of the incidents were discovered, reported and corrected by NSA itself.”
And, as a senior NSA official explained, “We’re a human-run agency operating in a complex environment with a number of different regulatory regimes, so at times we find ourselves on the wrong side of the line.” Or, as Deputy Attorney General James Cole put it recently in congressional testimony, now and then, there may be a mistake.”
Does “every now and then” compute into thousands of violations?
The plea of good faith and human fallibility at the console of high-tech snooping does not answer all the charges.
It was disclosed that the NSA directed analysts to delete details in reports they fill out to explain why they were conducting certain surveillance, thus depriving the FISA court of the information needed to make its rulings.
In one case, the court did not learn about a new collection method until it had been in use for months. The court subsequently ruled it unconstitutional.
This is not prima facie evidence of a cover-up. There may well have been legitimate bureaucratic or technical reasons for these deviations. But it is certainly cause for concern.
Furthermore, not only are the revelations disturbing, but so are the less-than-candid statements of government officials. As Sen. John McCain (R-Ariz.) complained in an interview on Sunday, “Why do we have to keep finding out this information by revelations from Mr. Snowden? Was the Congress informed? We know that … the director of National Intelligence made a false statement to Congress in open hearing. … So, we need more congressional oversight. We need more information.”
Senator McCain is right. We do need more information for better oversight of the NSA, so that its people will find themselves “on the wrong side of the line” less often.
But facts before frenzy. A sober examination of the violations show that not all of them are of a sinister nature; perhaps none of it is. Perhaps these leaks constitute not a torrent of horrifying, hidden truths, but a trickle of error, incompetence and the minor cover-ups of minor embarrassments and boo-boos. Congressional inquiry should help to get at the truth of the matter.