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New Report on NSA's Privacy Violations Fuels Movement for Surveillance Reform

BY Sarah Lai Stirland | Friday, August 16 2013

Photo: Jeff Schuler/Flickr

A startling new report published late Thursday evening that reveals for the first time thousands of instances where the National Security Agency overstepped its legal authority by illegally collecting the phone and e-mail communications of U.S. citizens is likely to put privacy and surveillance issues on the front-burner next month when members of Congress return to Washington D.C. from the August recess.

A top-secret audit of the NSA's surveillance activities dated May 2012 documented 2,776 "incidents" in the preceding 12 months of "unauthorized collection, storage, access to or distribution of legally protected communications," The Washington Post reported Thursday evening. The Post based its report on an audit provided to its national security reporter Barton Gellman by former NSA contractor Edward Snowden.

The audit's findings in of themselves are eye-opening both for their scale, and for the gaping difference between the audit's descriptions of the NSA's programs and the characterizations of them made both by administration officials and members of the congressional intelligence committees.

For example, NSA officials had stated that the agency's surveillance of e-mail communications and individuals' stored information online with third party technology companies had targeted only foreigners abroad. But another document obtained by the Post reported that in one incident the NSA "diverted large volumes of international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and selection," and that ended up commingling both U.S. and foreign e-mails. The NSA went ahead with the program anyway, and it was stopped only months later when the Foreign Intelligence Surveillance Court ruled that the program violated the Fourth Amendment.

The Post's report notes that much of the collection activity was inadvertent. For example, one in 10 incidents can be attributed to typographical errors. In one instance, "a large number" of phone calls originating from Washington D.C. were intercepted because a programming error entered the area code number as "202" rather than "20," which is the international area dialing code for Egypt.

Last Friday during a press conference about his NSA surveillance reform proposals, President Obama told reporters that "as President, I've taken steps to make sure [the surveillance programs] have strong oversight by all three branches of government and clear safeguards to prevent abuse and protect the rights of the American people."

Yet The Post reported Thursday that Senator Dianne Feinstein, the chairman of the Senate Intelligence Committee, never received a copy of the audit until Gellman shared it with her. In addition, Bob Litt, the general counsel for the Office of the Director of National Intelligence, has repeatedly asserted that the congressional intelligence committees had been "fully briefed" on the NSA's operations. House Intelligence Committee Chairman Mike Rogers, a Republican from Michigan, even went so far as to belittle Glenn Greenwald, the Guardian reporter and lawyer who's been at the heart of this narrative, as "clueless" about how the NSA programs actually work.

Watching the Watchers
The revelations also add to the growing sense that the administration isn't being forthright about how it conducts its surveillance activities, which would suggest that more oversight is needed.

"It was great to hear [Obama] acknowledge the need for an adversarial process at the FISA court -- that was the one meaningful thing that he said -- everything else was either papering over, or outright misrepresenting the truth," said Shahid Buttar, executive director of the Bill of Rights Defense Committee, a non-profit focused on constitutional issues.

"The idea of an orderly process, and a Congress that's been fully briefed -- that's total BS, and I was disappointed to hear the President make so factually and demonstrably untrue a claim as to say that Congress has been engaged in oversight of the NSA, because the executive branch as been impeding oversight at every turn."

Buttar, a liberal, spoke from New York City, where he was attending a conference at Columbia University. But his sentiments were echoed halfway across the country in Des Moines, Iowa by Ken Crow, a Tea Party activist and co-founder of TeapartyCommunity.com.

"We’ve caught them in too many lies," Crow said on the phone. "What they say, and what they’re doing are two different things."

A July poll from the Pew Research Center for the People and he Press shows that a majority of Americans share their Buttar and Crow's skepticism: The poll found that 70 percent of Americans believe that the government uses the information that it collects as part of the surveillance program for purposes other than for fighting terrorism, despite administration officials' statements to the contrary. And an even larger percentage of Tea Party Republicans believe that: 87 percent, according to Pew.

The President promised last Friday to work with Congress to enact "appropriate" reforms to the business records section of the USA PATRIOT Act, and to provide more mechanisms for transparency and oversight of the way the National Security Agency currently conducts its secret surveillance activities. That includes the potential creation of a new public advocate kind of role at the Foreign Intelligence Surveillance Court. The purpose of the advocate would be to represent the public's constitutional interests during the secret court proceedings to approve government surveillance requests. The proposals represent just a few ideas that are encapsulated in some of the 19 different legislative proposals that members of Congress have introduced since the Guardian and the Post broke the initial news of the NSA's data-mining techniques.

The new revelations of the NSA's violations, and the scale of the impact of seemingly small mistakes such as typos, would appear to undercut congressional leadership's arguments that implementing any changes at all to the secret surveillance system would be detrimental to national security. Last Sunday, for example, House Homeland Security Committee Chairman Michael McCaul, a Republican from Texas, told Meet the Press Host David Gregory that Obama's proposal for a public advocate would “slow down the efficacy and efficiency of our counterterrorism investigation,” and that he didn't think the approach "was the right way to go." He found fault with the President not because he allowed the programs to continue under his watch, but because he didn't explain them properly to the public.

That's a line that echoes House leadership. House Speaker John Boehner has consistently refrained from criticizing the surveillance techniques themselves. Instead, he's said that it's the President's job to persuade the public the NSA's activities are appropriate and necessary.

"Leadership often defers to committee perspective, and Chairman Rogers and [Senate Intelligence Committee] Ranking Member Saxby Chambliss [a Republican from Georgia] have been unabashed supporters of Prism and other reported NSA surveillance programs," says Derek Khanna, a former staffer on the House Republican Study Committee who is currently a fellow at Yale Law School.

"Members of Congress and their staffs usually use Verizon phones through their work on the Hill," he added. "How would they feel with their calling data, and that of their staffers being in the hands of the NSA? Perhaps they trust the NSA, but do they trust foreign intelligence agencies that we are sharing it with? And there is no reason to be assured that this information couldn't eventually be shared with other agencies like the IRS."

Khanna added, "Republicans should be engaging in this issue and holding the Obama administration accountable, this isn't what Congress authorized (according to the author and sponsor of the Patriot Act [Rep. Jim Sensenbrenner, R-Wisc]), and other than a few members of the Intelligence Committee, who were legally barred from speaking about it publicly, few in Congress were fully aware."

Dozens of other rank-and-file House Republicans have been similarly vocal about their worries about the extent and nature of the NSA's spying activities, and see it as another form of federal government overreach, along with the administration's perceived targeting of Tea Party groups as tax-exempt organizations, and the enactment of Obamacare. The most prominent of them is Rep. Justin Amash, the Tea Party Republican from Michigan who in July offered the amendment to the Department of Defense Appropriations bill that would have starved the NSA of funding unless it reverts back to the traditional method of investigating terrorists and criminals. Under that model, it would be illegal for the NSA to hoover up communications information into a database and then mine it for particular suspects. Investigators would instead have to have specific information that they would have to present to a court that would justify the collection of information about that individual. The amendment was narrowly defeated by 12 votes.

Apart from Sensenbrenner, the Wisconsin Republican who's said that the NSA has gone too far, many others who voted for the Amash amendment have spoken out on news programs and issued press releases criticizing the Administration over the revelations of the NSA's spying programs.

Rep. Jim Bridenstine (R-Okla,) for example, told Tucker Carlson on Fox News this June that he disapproves of the collect-first, look-later model of surveillance that's been described in the media. He compared it to the government gathering video footage in people's homes and claiming that they weren't going to examine it unless those people were being actively scrutinized in terrorism investigations.

And here's Rep. Steve Daines, a Republican from Montana, who voices a similar concern to many other Republicans in the House on the issue:

"We've seen what big government looks like: Nobody would have thought that the IRS would turn against the American people, and yet here we are," he said in a floor speech during debate on the Amash amendment. "We must always be vigilant, and be on guard against overreach of power."

Daines and his Republican colleagues are also reflecting the concerns expressed by conservative radio hosts such as Glenn Beck, who's been outspoken on NSA spying for the past several years.

Crow, Bhuttar and Josh Levy, Free Press' Internet campaign director and one of the prime organizers behind the Stop Watching Us coalition, separately said that they've all been active this month in putting together events to get constituents to express their concerns to their members of Congress.

Levy said that 200 people have already signed up with Free Press to hold these kinds of events.

"Getting any legislation through Congress in this climate requires dogged efforts by advocates, and extreme grassroots pressure, and the momentum on the grassroots level is growing," he said.

Update: Senate Judiciary Committee Chairman Pat Leahy issued the following statement Friday morning:

"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.

I plan to hold another hearing on these matters in the Judiciary Committee and will continue to demand honest and forthright answers from the intelligence community. Using advanced surveillance technologies in secret demands close oversight and appropriate checks and balances, and the American people deserve no less than that."

Update II: House Oversight & Government Reform Committee Chairman Darrell Issa's Spokesman Frederick Hill tells me that the House plans on conducting "robust oversight of the program and recent revelations."

I'd previously queried the chairman's staff over his vote against the Amash amendment, and his loud silence on the subject compared to many of his Republican colleagues.

"Rep. Issa’s decision to vote against the Amash amendment was not a vote of confidence in the NSA surveillance program, but reflected concerns that the legal construction of the amendment would unduly restrict legitimate intelligence collection efforts without effectively prohibiting inappropriate use," Hill writes in an e-mail. Instead, Issa supported Rep. Mike Pompeo (R-Kan.)'s amendment at the time of the House vote in June, which some have criticized as a red herring that did little to fundamentally alter the nature of the NSA's surveillance -- i.e. prohibit data mining.

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