The NSA Is Losing The Benefit of the Doubt

RUTH MARCUS WASHINGTON POST

Footnote 14 should scare every American. Even the parts that aren’t blacked out.
The footnote is contained in the just-declassified 2011 opinion by U.S. District Judge John Bates, then the chief judge of the Foreign Intelligence Surveillance Court.

In the ruling, Bates found that the government had been sweeping up e-mails before receiving court approval in 2008 and, even after that, was illegally collecting “tens of thousands of wholly domestic communications.”
That’s not the really scary part. This is: “The court is troubled that the government’s revelations . . . mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Bates wrote in Footnote 14.

He cited a 2009 finding that the court’s approval of the National Security Agency’s telephone records program was premised on “a flawed depiction” of how the NSA uses metadata, a “misperception . . . buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime.
“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying. The Court concluded that this requirement had been ‘so frequently and systemically violated that it can fairly be said that this critical element of the overall . . . regime has never functioned effectively.’ ”

Followed by two full paragraphs of redactions. We can only imagine what that episode entailed.


U.S. District Judge John Bates

To judge the significance of Bates’s footnote, it helps to know something about the judge. This is no wild-eyed liberal. Bates spent almost two decades in the U.S. Attorney’s Office in Washington. He served as deputy to independent counsel Kenneth Starr during the investigation of President Bill Clinton. He was named to the bench by President George W. Bush.
If Bates is worked up about being misled by the government — and the sober language of that footnote is the judicial version of a severe dressing-down — people should listen.

Security demands secrecy. The Constitution demands that secrecy be coupled with oversight. In theory, that oversight is twofold, from Congress and the judiciary, through the mechanism of the surveillance court.
In practice, oversight necessarily depends on some measure of good will from the overseen. No matter how well-intentioned and diligent the overseers, particularly in an area as technologically murky and politically fraught as surveillance, the intelligence experts tend to hold the cards.
Their deeply ingrained institutional bias is to reveal only what is absolutely necessary, to trust their secrets and secret methods to as few outsiders as possible. When that instinct for secrecy edges into a willingness to mislead, tacitly or explicitly, effective oversight collapses.


Sen. Ron Wyden          Dir of Nat'l Intelligence James Clapper


We have already seen this phenomenon on display before Congress, in the person of Director of National Intelligence James Clapper. In March, Sen. Ron Wyden asked Clapper whether the NSA collects “any type of data at all on millions or hundreds of millions of Americans.” Clapper’s answer, “No . . . not wittingly.”
This was, as Clapper acknowledged, “clearly erroneous.” His belated apology rings hollow. Clapper was not only forewarned about the question, he refused to correct his misrepresentation for months, until it was proved false.
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It is possible to construct a happier narrative. After all, Bates’s rebuke was prompted by the intelligence community’s own disclosures. The government then cleaned up its act, with court-approved procedures to minimize privacy invasions. Congress was informed of the program, the court’s problems with it and the fixes being made. The relevant documents were declassified and released (albeit in the face of a lawsuit). President Obama has proposed additional oversight mechanisms, such as building adversary procedures into the surveillance court.
These are hopeful signs, but they do not erase the ugly history: “repeated inaccurate statements” to the court, “clearly erroneous” congressional testimony. Current assurances, made under the duress of unauthorized disclosure, must be judged in light of past performance. An intelligence community consistently too cute by half ends up harming itself, along with the country it strives to protect.

ATTEMPTING TO BALANCE NSA INTEL WITH AMERICAN CIVIL LIBERTIES

 Photograph: J Scott Applewhite/AP
James Clapper, the director of national intelligence, has now admitted he gave the "least untruthful" answer to a direct question in March about the extent of surveillance on US citizens. The admission sets up a critical test of Clapper's relationship with the congressional committees that oversee him – committees the Obama administration is relying on for its defense of the surveillance efforts.
The Obama team is expressing support for Clapper as criticism of him mounts. "The president has full faith in director Clapper and his leadership of the intelligence community," ...At least one member of Congress is calling for Clapper's head. On his Facebook page, Justin Amash, a Michigan Republican, wrote that Clapper "lied under oath" to Congress.

GREG SARGENT, WASHINGTON POST

Most columnists, editorialists and civil liberties organizations agree at this point that the revelations about the NSA gathering of phone records and internet info are deeply troubling — either in terms of the overreach of the programs, or the secrecy shrouding them, or both.
But what can be done about it in policy terms? Is there a way to continue giving the government the surveillance tools it says it needs to ensure national security, even as we do a better job safeguarding Americans’ civil liberties?
As it turns out, the answer may be Yes. What isn’t getting the attention it deserves is that civil libertarians are not calling for a complete end to the surveillance the government says it needs to continue exercising. They are simply calling for a narrowing of it — one that would better balance the need to protect the American people with the need to guard Americans’ right to privacy.
Here, with the help of Michelle Richardson, legislative counsel for the ACLU, are steps that could be taken to mitigate current government overreach:

Narrow the scope of the relevant statute. This isn’t likely to happen, because it would require an act of Congress, and many members of Congress have staunchly defended the current NSA programs. But narrowing the statute is probably the only way current NSA overreach can be reined in, Richardson tells me. What would that entail?
The gathering of phone records is the result of the government’s interpretation of section 215 of the Patriot Act, which expanded the government’s ability to collect records while lowering the standard required to allow it, in ways civil libertarians believe violates the 4th Amendment. This statute could be narrowed by moving to what Richardson calls a “suspicion-based” standard. Under this standard, the government could not do a massive open-ended dragnet compilation of phone records. Instead, it could get a court’s permission to gather the phone records, i.e., the meta-data, of someone reasonably suspected of being a terrorist or spy — or someone who has been contacted by one of those people, Richardson argues. Info could be gathered on a group of people suspected of those activities, or even on a suspected entity (such as a building out of which terrorists or spies are suspected of operating).

Under this standard, the government could continue collecting the phone records even of Americans not suspected of anything, since such a search would result in the gathering of records on everyone the suspects were contacted by, including innocents. But that search could only be initiated by a reasonable suspicion about a particular person, group, or entity. This would balance national security with a more reasonable — but not perfect — defense of Americans’ privacy rights.
As for true emergency situations, Richardson says, the government’s ability to get emergency orders from the FISA court could be maintained, even amid a statutory fix.

Bring more transparency to the current programs. Ron Fournier writes: “Tell us what our government is doing, and why.” Is this possible? To some degree, yes. Barring the above statutory change, the government could bring more transparency right now to the programs that are currently operating. For instance, Richardson notes, we know phone records are currently being gathered in a data-base? What about, say, emails and financial records? How broad is the program, anyway?
The Director of National Intelligence has clarified that the government does not have the power to listen in on calls or monitor content of communications. However, Richardson notes, the government could be more forthcoming about the guidelines that determine whether it is able to look at meta-data of Americans not suspected of anything. What is done with all of this information, and what dictates how or whether it is accessed?
Key questions remain about the scope and inner workings of this program. The administration — and members of Congress — have said more disclosure could imperil their effectiveness by tipping off would-be terrorists. But as Richardson notes, they are likely proceeding from the assumption that they are being subjected to extensive surveillance already, so that excuse rings hollow. “The 9/11 plotters communicated in code,” Richard says.
Also: The FISA court decisions granting government surveillance authority should be disclosed, with appropriate redactions. “The bottom line is there shouldn’t be secret law,” Richardson concludes.
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To be sure, national security experts might quarrel with the civil libertarian argument that these principles can be safeguarded without compromising security. And far too little is known about how these programs work to be sure about how — or whether — a proper balance can be achieved. But the basic fact that needs to be understood is that civil libertarians are not calling for an end to surveillance. They just want us to at least make a serious effort to get that balance right. Which Obama himself has articulated as a goal, at least in theory.