Data Protection NSA Spy Scandal
by  John Fund

It’s time to ask tough questions about the National Security Agency’s surveillance activities — even for conservatives who have given the NSA the benefit of every doubt up until now.

The Washington Post opened a can of worms last Friday when it reported that, in 2012, an internal NSA audit found that the agency had violated privacy rules 2,776 times within just one year. The audit counted only violations at NSA’s Washington facilities — nearly 20 other NSA facilities were not included. In the wake of the Post’s report, the NSA insisted that the violations were “inadvertent,” but it failed to explain why it had not shared the report with Senate Intelligence Committee chair Dianne Feinstein or other congressional oversight authorities.

Yet some NSA defenders continue to insist that nothing is wrong. Back in July, House Intelligence Committee chair Mike Rogers claimed that there have been “zero privacy violations” on the part of NSA. After the leaked audit made news on Friday, he retreated to saying that “there was no intentional and willful violation of the law.”

Other NSA stalwarts have even decided to go on the attack against critics. Former NSA director Mike Hayden, in a speech to the Bipartisan Policy Center last week, dismissed the nation’s most outspoken transparency groups and privacy advocates as “nihilists, anarchists, activists, Lulzsec, Anonymous twentysomethings who haven’t talked to the opposite sex in five or six years.” That’s reminiscent of former CBS News executive Jonathan Klein’s 2004 defense of the forged George W. Bush National Guard memos that ultimately cost Dan Rather his anchor chair at the network. Klein lashed out at the bloggers who broke the news that the documents had been forged by contrasting CBS’s “multiple layers of checks and balances” with “a guy sitting in his living room in his pajamas writing what he thinks.”

The fact is that we need to double-check all those “checks and balances” the NSA assures us will prevent abuse of its surveillance powers. Similarly, the media should inject some balance into how they treat President Obama’s assurances that nothing is wrong at the NSA.

Consider the record. Last week, President Obama told reporters: “I’m comfortable that if the American people examined exactly what was taking place, how it was being used, what the safeguards were, they would say, ‘You know what? These folks are following the law and doing what they say they’re doing.’”

But the NSA audit found that in at least one instance, the agency decided it didn’t need to follow the law and report the unintended surveillance of U.S. citizens. In another case, the FISA court was in the dark about a new NSA collection method for months. When it did learn about it, it promptly declared it unconstitutional.

President Obama has also insisted that our intelligence gathering is transparent. In June, he claimed in a statement that the FISA court is “empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.” But writing to theWashington Post, the chief of the FISA court, U.S. District Judge Reggie Walton, emphasized that his court “does not have the capacity to investigate issues of noncompliance, and in that regard 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 view over the government’s shoulder is often blocked.

A veteran intelligence official with decades of experience at various agencies identified to me what he sees as the real problem with the current NSA: “It’s increasingly become a culture of arrogance. They tell Congress what they want to tell them. Mike Rogers and Dianne Feinstein at the Intelligence Committees don’t know what they don’t know about the programs.” He himself was asked to skew the data an intelligence agency submitted to Congress, in an effort to get a bigger piece of the intelligence budget. He refused and was promptly replaced in his job, presumably by someone who would do as told.

The response to all of this by some NSA supporters is to point out that the nation hasn’t been attacked in the dozen years since 9/11. As someone who stood on the street across from the World Trade Center as it collapsed on 9/11, I can appreciate how we must strive to prevent similar atrocities in the future.

But steadfastness must be accompanied by a clear understanding of the role of bureaucracies. General Keith Alexander, the current head of the NSA, told Congress in June that data “gathered from these programs provided government with critical leads to prevent over 50 potential terrorist events in more than 20 countries around the world.” But my veteran intelligence-agency source says that no one can be sure if that’s the case: “The NSA grades its own report card, and it wouldn’t be the first bureaucracy to exaggerate its effectiveness.” Senator Ron Wyden of Oregon, a moderate Democrat who has been on the Intelligence Committee since 2001, said in a speech last month: “I have not seen any indication that the bulk phone-records program yielded any unique intelligence that was not also available to the government through less intrusive means.” Presumably, NSA would have shared such positive evidence with the intelligence committees.

It was Senator Wyden who famously asked Director of Intelligence James Clapper last March, before the Snowden revelations, whether the NSA collected “any type of data at all on millions or hundreds of millions of Americans.” Clapper’s response was pretty clear: “No, Sir.” When pressed, Clapper amended his answer to “not wittingly.” He later told NBC News that he had given the “least untruthful” answer he could think of. He should have done what previous officials have long done and said he could fully respond only in a closed session. At least one of our top intelligence officials doesn’t display intelligence as often as he should.

Other top officials have made such a hash of explaining each new NSA revelation that even staunch national-security conservatives are beginning to wonder what else we don’t know. “The proper response to the latest revelation is not panic but deep frustration and a demand for data that does more than get the NSA through a news cycle,” writes Jennifer Rubin, the Washington Post’s conservative blogger. “It must be more forthcoming, or it will lose its mandate.”

In 1999, then-senator Daniel Patrick Moynihan wrote Secrecy: The American Experience, in which he analyzed the parallel growth of secrecy and bureaucracy in the U.S. “Secrecy is a form of regulation,” he warned. “At times, in the name of national security, secrecy has put that very security in harm’s way.” He observed that although secrecy is absolutely necessary for our protection, it all too often serves as the first refuge of incompetents or those drunk with arrogance. We should not give these groups the ability to cloak their operations — no matter how virtuous the goal.

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John Fund is national-affairs columnist for NRO.

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