It has not been a good couple of weeks for the National Security Agency. Numerous details have emerged about the agency’s
spying “data acquisition” programs, and there’s also fresh outrage over the president’s review panel, stocked with government insiders. And who knows if the Foreign Intelligence Surveillance Court is really doing its job?
If you need a quick summary, here are five things to pay attention to in the ongoing NSA saga:
1. The FISA court had no idea what was going on.
The NSA has been vacuuming up Americans’ emails and other communications for years, it admitted in a released memo that the Electronic Frontier Foundation won as part of its legal battle. The court’s opinion held that collecting these communications, known as “upstream” data, was unconstitutional, but it didn’t even know it was going on until 2011!
As the memo notes, not only are all these communications collected, but the NSA can’t avoid doing it, and more to the point, these communications frequently have nothing to do with any sort of investigation whatsoever. It doesn’t matter if you’re clean or a target; in either case, the NSA still scoops up your data. It was so wide reaching that the FISA court first ruled it unconstitutional, but in the end, gave the government a few extra months to clean it up, implement new rules and delete information after two years rather than five.
That it took years for the court to discover this program–and indeed, it notes that between 2009 and 2011, there were at least three of these revelations–raises serious questions about the court’s ability to serve as an effective watchdog over the NSA. If the government is misleading the court over this, what else does the court not know?
2. The NSA has deliberately violated the law.
It may not matter if the FISA court knows what’s happening or not, as it appears the agency has broken privacy rules before. The agency told Bloomberg on Friday that some NSA analysts deliberately broke privacy rules to abuse their power. This comes on the heels of a statement from Sen. Dianne Feinstein, D-Calif., that the NSA has never “intentionally abused its authority to conduct surveillance for inappropriate purposes.”
Bloomberg reporter Chris Stohm notes that “the compilation of willful violations, while limited, contradicts repeated assertions that no deliberate abuses occurred.
There are indeed about a dozen cases over the past decade; at least, a dozen cases that the agency revealed. But how many others might be out there? We may never know.
3. The NSA spied on the Supreme Court.
A textbook example of an out-of-control agency might be a national surveillance organization bugging the phones of the justices of the nation’s highest court. It wouldn’t sound out of place in a news story about a Third World banana republic. Yet instead, it’s happening right here in America:
RUSSELL TICE, former National Security Agency analyst: The United States were, at that time, using satellites to spy on American citizens. At that time, it was news organizations, the State Department, including Colin Powell, and an awful lot of senior military people and industrial types.
JUDY WOODRUFF: So, this is the early 2000s.
RUSSELL TICE: This was in 2002-2003 time frame. The NSA were targeting individuals. In that case, they were judges like the Supreme Court. I held in my hand Judge (Samuel) Alito’s targeting information for his phones and his staff and his family.
WILLIAM BINNEY, former National Security Agency technical leader: Well, I wasn’t aware of specific targeting like Russ was. I just saw the inputs were including hundreds of millions of records of phone calls of U.S. citizens every day. So it was virtually — there wasn’t anybody who wasn’t a part of this collection of information. So, virtually, you could target anybody in this country you wanted.
There you have it. Granted, this took place ten years ago, during the Bush administration, but that only makes the NSA even more chilling. That they were spying on the nation’s highest court makes you wonder where they will stop.
4. Obama’s panel of “outside experts” are all government insiders.
You would hope the chief executive of the United States might have something to say about all this. Maybe he will do something to curb the agency’s excesses. And he did promise, in an Aug. 9 press conference, to appoint a panel of “outside experts” to review the agency’s excesses and make proposals.
Here’s the problem: not one of them is an “outside expert.” Andrea Peterson of the Washington Post writes:
ABC reports that the Obama administration’s surveillance review panel will include former intelligence and White House staffers, including Michael Morell, Richard Clarke, Cass Sunstein and Peter Swire. An official announcement of the members of the panel is expected soon.
The review panel was first announced in a White House press conference on Aug. 9, when Obama said the administration would form “a high-level group of outside experts to review our entire intelligence and communications technologies.”
Michael Morell was a career intelligence officer, serving in the Central Intelligence Agency for 33 years. He retired from his position as deputy director of the CIA earlier this year after serving two stints as the agency’s acting head during President Obama’s tenure.
Sunstein and and Swire are both former Obama administration White House staffers. Sunstein left his position as the administrator of the White House’s Office of Information and Regulatory Affairs in 2012, while Swire served on the Obama-Biden transition team and as special assistant to president Obama for economic policy. Swire currently teaches at the Scheller College of Business at Georgia Tech. He previously worked in the Clinton White House, where he chaired a working group on how to update wiretap laws for the Internet.
Clarke is a former national coordinator for security, infrastructure protection, and counter-terrorism for the United States. He worked for the State Department during the Reagan administration and served on the National Security Council during the Clinton and both Bush administrations. Clarke also endorsed then-Sen. Obama’s presidential campaign in 2007.
While Sunstein is best-known for Nudge, the book he co-wrote with Richard Thaler advocating”libertarian paternalism,” he also co-authored a working paper in 2008 that suggests government agents or their allies “cognitively infiltrate” conspiracy theorist groups by joining “chat rooms, online social networks or even real-space groups” and influencing the conversation.
The suggestion that the government should infiltrate groups that are not actively participating in criminal acts is troubling. In fact, it recalls the abuses uncovered by the Church Committee in the 1970s, when the FBI infiltrated such subversive groups as the women’s lib and civil rights movements. To his credit, Sunstein’s infiltration suggestion is different in nature:
By this we do not mean 1960s-style infiltration with a view to surveillance and collecting information, possibly for use in future prosecutions. Rather, we mean that government efforts might succeed in weakening or even breaking up the ideological and epistemological complexes that constitute these networks and groups.
Of course, while it’s nice to assume that the government would limit its “cognitive infiltration” authority to false conspiracies, history suggests that it would be also used against activists trying to expose actual government misconduct. But it only gets worse…
5. The review panel is being led by a man who lied to Congress.
James Clapper, the director of national intelligence, lied to Congress back in March, when he claimed that the NSA was not collecting information on millions of Americans. Oh, sure, he later apologized, but can we trust a surveillance director that makes “clearly erroneous” statements to our duly elected government and legislature? It puts his credibility in doubt, and already some have called for him to be removed.
So we have a watchdog court that is completely in the dark; an agency whose analysts have deliberately broken the law multiple times and spied on the nation’s highest court; a review panel that is made up completely of intelligence and government insiders; and it’s all headed by a man who lied under oath to Congress.
Need any more?