The agency’s approach to collecting data is too easily abused.
Since news broke in June that the government has been seizing millions of Americans’ phone and Internet records, the Obama administration’s defense has rested on three pillars. The collections are needed to prevent terrorist attacks. Internal safeguards protect the public’s privacy. And ultimately, Congress and judges on a special court have Americans’ backs.
Not a bad argument, if it holds up. So far, it hasn’t.
The only evidence of protection from attack is that the phone database, the most troubling aspect of surveillance, has “contributed” to understanding a dozen events, but not necessarily to preventing them. On Friday, another set of internal documents — again from fugitive leaker Edward Snowden — raised doubts about the agency’s internal safeguards and the ability of lawmakers and judges to provide oversight.
The documents, analyzed by The Washington Post, show that the National Security Agency has “broken privacy rules or overstepped its legal authority thousands of times each year” since 2008.
It would be easy to read too much into the report. Many of those incidents can be chalked up to carelessness. For instance, a programming error mixed up the 202 area code (Washington, D.C.) with the Egyptian international code and the agency ended up collecting a “large number” of domestic call records.
But other violations — small in number but significant in form — go to the heart of what is so disturbing about the agency’s vacuum cleaner approach to surveillance: It’s too easily abused. One program swept up both foreign and U.S. e-mails for months before the Foreign Intelligence Surveillance Court ruled the practice unconstitutional and shut it down.
Still, it’s not even these “mistakes,” as the NSA called them Friday, that are most disturbing. (Though it’s worth asking whether an agency with such access to Americans’ private communications can afford to make thousands of mistakes.)
More bothersome is the hint in the latest disclosures that NSA is trying to hide its excesses from overseers.
For instance, the NSA directed analysts not to include details in reports they fill out to explain why they were searching a database on a particular target. That seems odd after officials have testified repeatedly that every analyst must have “reasonable articulable suspicion” to target any phone number. NSA says details are available to overseers. But why not articulate the need in the first place?
To do otherwise is unacceptable for the simple reason that all the information about the NSA programs comes from, you guessed it, the NSA. Those charged with protecting the public interest have no way to check it against anything objective.
Judge Reggie Walton, who heads the secret FISA Court, acknowledged as much to the Post. The court “is forced to rely upon the accuracy of the information that is provided” by national security agencies, he said. Congress faces the same constraints.
Sen. John McCain, R-Ariz., summed up the problem Sunday on CNN’s State of the Union.
“Why do we have to keep finding out this information by revelations from Mr. Snowden?” he asked. “Was the Congress informed? We know that … the director of National Intelligence made a false statement to Congress in open hearing. … So, we need more congressional oversight. We need more information.”
Yes, we do.
What the latest disclosures demonstrate is how little Americans know about what the NSA is up to and how easy it is for a secret agency with vast powers to abuse them.
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This op-ed aritcle appeared in USA Today whose editorial opinions are decided by its Editorial Board, separate from the news staff.