Today’s Washington Post has two articles every liberty lover and limited government constitutional conservative should read and read again to understand why it is so important to rein-in the NSA, especially when Barack Obama is in charge.
The Post’s Barton Gellman details (thank you, Edward Snowden) how in the 12 months immediately prior to May 2012 the NSA “counted” and documented some 2,776 “incidents” of “unauthorized collection, storage, access to or distribution of legally protected communications.”
Of course it is possible that there were more; 2,776 is merely the number the NSA acknowledged to itself in a report that was never intended for public distribution. (You can read the report via this link [6].)
Now the number of “incidents” of unauthorized collection, storage, access to or distribution of legally protected communications is important and interesting for a number of reasons, not the least of which is that it shows that NSA personnel are subject to the same kind of human errors and frailties in those who run the government from which the Constitutional was designed to protect us.
But that’s not the most important point in the Post article or in the documents Snowden supplied to Mr. Gellman.
Buried down in the middle of the article is this key point: “In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence.” (You can read the original via this link [7].)
This is important because, as Post writer Carol Leonnig reported in another surveillance state-related article, “The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.”
In a rare public statement U.S. District Judge Reggie B. Walton, chief of the Foreign Intelligence Surveillance Court (FISC) said in a written statement to The Post that, “The FISC is forced to rely upon the accuracy of the information that is provided to the Court… 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.”
In other words, the Court that is nominally supposed to protect Americans’ constitutional rights and privacy and has, in the eyes of many observes and constitutionalists failed miserably, only knows what the Obama administration, or any future government that is even worse, tells it.
The practical and obvious result of this problem is that unconstitutional activity goes on as long as the government chooses to keep it a secret.
More importantly, by eliciting Judge Walton’s statement, The Washington Post has put to lie the “repeated assurances from the Obama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts,” as Leonnig so correctly noted in her article.
Now here’s the key place where the two articles intersect: “In 2009,” Leonnig reports that “...a Justice Department review uncovered a major operational glitch that had led to a series of significant violations of the court’s order and notified the court, according to records that were declassified July 31 by the Office of the Director of National Intelligence.”
“One senior intelligence official, who was authorized by the White House to speak on the condition of anonymity, described the 2009 incident as a “major event” that prompted the agency to dramatically increase its compliance staff.”
Aren’t these the exact officials to whom NSA staff was directed to “remove details and substitute more generic language in reports?”
Or as some might see it, lie by omission.
These revelations taken together should engender much more stringent oversight of the NSA by Congress. The problem there is too many members of Congress, who should have the constitutional rights and liberty of their fellow Americans upper most in their minds, have been suckered into a “technology can save us” mindset and become complicit in the advancement of the surveillance state.
At a minimum Congress should do its job and conduct much more detailed oversight of the NSA, but the revelations in the material Edward Snowden released to The Washington Post that formed the basis for these excellent articles really cries out for the creation of a public advocate or ombudsman to represent the Constitution before the Foreign Intelligence Surveillance Court to act as a counterpoint to the government’s surveillance state advocacy and to demand the level of detail from the NSA that the Court is currently ill-equipped to obtain.
To read "NSA broke privacy rules thousands of times per year, audit finds [8]" by Barton Gellman click the link
To read "Court: Ability to police U.S. spying program limited [9]" by Carol D. Leonnig click the link
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