NSA abuses contradict Obama and congressional claims of oversight
Updated at 5:30 p.m. ET
Since the public learned in June about sweeping National Security Agency programs, government officials from President Obama on down have insisted the nation's surveillance programs are subject to layers of oversight.
"I am comfortable that the program currently is not being abused," Mr. Obama said in a press conference last week, when he announced new efforts at increasing transparency. "Part of the reason they're not abused is because these checks are in place."
However, the latest revelation that the NSA violated privacy rules thousands of times, as documented in an internal report -- an internal report withheld from at least one leader in Congress responsible for oversight -- proves the president and several others in Washington were wrong. The NSA broke privacy rules more than 2,700 times within just one year, according to a May 2012 internal NSA report that was leaked to the Washington Post, along with other secret documents.
"The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance," the Post wrote, noting that Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., had not seen the internal report before the newspaper asked her staff about it.
Some of the violations were a result of human error, some were related to technical challenges and most were unintended, the Post reported. The sheer number of violations, however, will raise concerns, CBS News national security analyst Juan Zarate said on "CBS This Morning."
"The fact is, this more than just a few inadvertent episodes," he said. "It's really a sense from the internal audits -- inside the government -- of the violations and overstepping by the NSA."
Leaders of the intelligence committees in Congress defended the NSA programs when they were first revealed and continued to do so on Friday.
"I have seen no abuse by these agencies, nor has any claim ever been made in any way, shape, or form, that this was abused," Feinstein said on CBS' "Face the Nation" in June.
Even after the Post asked Feinstein about the internal report, she released a statement reaffirming her confidence in NSA surveillance activities. She said that while she did not receive the internal report, she gets surveillance compliance information in other, more official formats.
"The majority of these 'compliance incidents' are... unintentional and do not involve any inappropriate surveillance of Americans," she said in her statement. "As I have said previously, the committee has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes. I believe, however, that the committee can and should do more to independently verify that NSA's operations are appropriate, and its reports of compliance incidents are accurate."
House Intelligence Committee Chairman Mike Rogers, R-Mich., said in July on "Face the Nation" that there are "zero privacy violations" in the NSA programs.
He similarly said on Friday, "The disclosed documents demonstrate that there was no intentional and willful violation of the law and that the NSA is not collecting the email and telephone traffic of all Americans, as previously reported. Congress and the court have put in place auditing, reporting, and compliance requirements to help ensure that the executive branch, the Congress, and the Court each have insight into how the authorities granted to the NSA are used. As a result, even the inadvertent and unintentional errors are documented."
White House deputy press secretary Josh Earnest released a statement echoing the point that "the majority of the compliance incidents are unintentional."
"The documents demonstrate that the NSA is monitoring, detecting, addressing and reporting compliance incidents," Earnest said. "We have been keeping the Congress appropriately informed of compliance issues as they arise and look forward to working with members in both parties on additional reforms that would further improve oversight and strengthen public confidence in these operations that are so critical to American national security."
However, the documents shared with the Post make clear that the NSA deliberately withheld some information from oversight bodies, such as the 2008 unintentional interception of a "large number" of calls placed from Washington, D.C. The interception occurred when a programming error confused the U.S. area code 202 for 20, the international dialing code for Egypt. And while the NSA has quadrupled its oversight staff since 2009, the Post reports, infractions increased in 2011 and early 2012.
A number of other lawmakers -- both before and after the latest revelations --have expressed concern about whether the NSA has been forthcoming enough with Congress and the public.
"This is what happens when you have secret laws, no meaningful oversight, and people in charge who think the Constitution wasn't written for them," Rep. Justin Amash, R-Mich., said in a statement following the news of the NSA internal report. "There are good people working in the intelligence community, but the culture is broken because of the failed leadership of Democrats and Republicans in Washington."
Amash introduced an amendment in the House to curtail the NSA's bulk collection of U.S. phone records, but the amendment narrowly failed.
Meanwhile, in an interview published Thursday with Rolling Stone, Sen. Ron Wyden, D-Ore., said, "I'm not sure those at the highest level have really come to see the implications of their not being straight with the Congress."
On Friday, Wyden and Sen. Mark Udall, D-Colo. -- both members of the Intelligence Committee -- released a joint statement calling on the administration to release more details of the violations.
"We have previously said that the violations of these laws and rules were more serious than had been acknowledged, and we believe Americans should know that this confirmation is just the tip of a larger iceberg," they said.
Mark Jaycox, a policy analyst with the Electronic Frontier Foundation, told CBSNews.com, "This is exactly what's not supposed to happen -- a rogue agency keeping documents secret from the people who are supposed to oversee them."
That said, he added, "Congress has not been given enough flak" for failing at its oversight duties.
"The congressional intelligence committees have not provided the oversight they were originally intended to," he said, suggesting that the House and Senate Judiciary Committees launch an investigation or that an independent committee like the 9/11 Commission investigate surveillance activities.
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., said in a statement in response to the Post's report that he plans to hold another hearing on the matter. He noted that he's re-introduced legislation to strengthen independent oversight of the NSA, in part by requiring an inspector general audit -- not just an internal audit -- of surveillance activities.
"Every one of us who reads the intelligence knows we face threats, we face horrendous threats, but there are better ways of blocking those threats and the idea that we're going to just spy on every single American and do things that we never believed in as a country is not going to make us safer in the long run," Leahy said in an interview with Vermont CBS affiliate WCAX. "I want to know if NSA has made a mistake, we ought to know that. If they are tapping into people's telephones where they have no right to, we ought to know that. And if they are spending huge amounts of money to collect data, but not doing anything to make us safer we ought to know that."
While Congress has a responsibility to conduct oversight of surveillance activities, it's also the job of the Foreign Intelligence Surveillance Court (FISC). Yet in a complementary article, the Washington Post makes clear the court's powers are limited.
"The FISC is forced to rely upon the accuracy of the information that is provided to the Court," U.S. District Judge Reggie B. Walton, chief of the FISC, said in a written statement to the Post. "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."
