The NSA Thinks It's Above the Law — and the Obama Administration Knew It

Thursday night, The Washington Post published an internal audit of the NSA surveillance programs leaked by Edward Snowden, which show that the NSA has violated the privacy rules in place to protect Americans' communications 2,776 times in one year. The infringements relate to the restrictions enacted by executive orders, which supposedly prevent the surveillance of American individuals without legal authorization. It has been determined that the majority of mistakes have been made by intelligence operators and computers.

The general suspicion that the NSA had ignored the privacy restrictions imposed on it was confirmed by the audit. President Obama has continuously reassured the American people that the U.S. does not spy on its own citizens, and that safeguards are in place to prevent abuse of the wide birth the agency has been given. With the understanding that it will take time, I have been a supporter of finding a delicate balance between privacy and security. However, I strongly disagree with the president’s misleading statements about the extent of the NSA’s activities and the program’s faults when it comes to domestic surveillance.

During a recent press briefing, President Obama laid out his plan to seek reforms to the NSA surveillance program’s oversight and legal authority. Yet Thursday's report contradicts a great deal of what the president told the American public.  At one juncture during his remarks, the president commented that the administration “must be more transparent.” He then added, “If you look at the reports…what you’re not reading about is the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s e-mails.” I guess not until today.

The president was not truthful with the American people when he spoke on the matter last Friday. He made it clear that the NSA wasn’t abusing its power because “checks are in place, and those abuses would be against the law and would be against the orders of the FISC.”  He added that the judges who sit on the FISC are “empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused." Yet today, according to a response by the chief judge of the FISC, the court lacks the necessary resources and ability to preform proper reviews to ensure that the NSA isn’t breaking the rules the court has set. “The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” said Reggie B. Walton, the court’s chief. “The FISC does not have the capacity to investigate issues of noncompliance.”

The details of the audit, given several months ago to The Washington Post by Snowden, present particular details that were not previously visible to government oversight committees or Congress. In fact, many of the NSA’s employees were directed to use “more general” language in filing reports with the FISC, saying, “we DO NOT want to give [the court] any extraneous information.” The withholding of such important information for the court to review is reprehensible and perhaps the most concerning part of this recent release. That directive completely undermines the value of law and purpose of the due diligence.

While the 2,776 cases of incorrectly collecting data on Americans is troubling, one must keep in mind that, as an NSA spokesman said, the employees are humans working in a complex environment, where errors can occur. In this case, over half of the infractions were almost impossible to avoid. 1,904 of the 2,776 incidences were known as “roamers,” where foreign individuals whose phones had been wiretapped without a warrant traveled to the U.S., where monitoring does require a warrant. “Roamer incidents are largely unpreventable, even with good target awareness and traffic review, since target travel activities are often unannounced and not easily predicted,” the report confirmed.

A more alarming case resulted in the collection thousands of calls from Washington when the computer systems confused the U.S. area code “202” for “20,” which is the international calling code for Egypt. Nonetheless, the majority of the mistakes were human and computer error, things that can be swiftly corrected. The NSA processes millions upon millions of communication records and the "unintended" errors are an extremely minute portion in comparison. 

The Obama administration needs to act swiftly to correct the NSA’s missteps. The actions of this administration are going to set a precedent for how future presidents address surveillance. In this global climate and the digital age, these types of surveillance techniques will develop over time, but it is imperative that our government take the proper legal steps to establish safeguards against misuse now.  It starts with admitting to the public that changes need to be made and by giving the proper resources to the FISC court.