All Three Branches Conduct Vaunted NSA Oversight!

Today, we learned this is what the vaunted Congressional oversight of NSA spying looks like.

Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.), who did not receive a copy of the 2012 audit [showing thousands of violations] until The Post asked her staff about it, said in a statement late Thursday 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.”

We learned this is what the vaunted FISA Court oversight of NSA spying looks like.

The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie Walton, said in a written statement to The Washington 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.”

We learned this is what the vaunted internal NSA oversight of NSA spying looks like.

The NSA uses the term “incidental” when it sweeps up the records of an American while targeting a foreigner or a U.S. person who is believed to be involved in terrorism. Official guidelines for NSA personnel say that kind of incident, pervasive under current practices, “does not constitute a . . . violation” and “does not have to be reported” to the NSA inspector general for inclusion in quarterly reports to Congress. Once added to its databases, absent other restrictions, the communications of Americans may be searched freely.

In one required tutorial, NSA collectors and analysts are taught to fill out oversight forms without giving “extraneous information” to “our FAA overseers.” FAA is a reference to the FISA Amendments Act of 2008, which granted broad new authorities to the NSA in exchange for regular audits from the Justice Department and the office of the Director of National Intelligence and periodic reports to Congress and the surveillance court.

Using real-world examples, the “Target Analyst Rationale Instructions” explain how NSA employees should strip out details and substitute generic descriptions of the evidence and analysis behind their targeting choices.

Vaunted. For well over 2 months. This is what they’ve been hailing.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. Peterr says:

    Reggie does not sound happy about being misled.

    Kind of reminds me of his thoughts about a certain amicus brief, back in the day:

    Walton: With all due respect, these are intelligent people, but I would not accept this brief from a first year law student. I believe this was put out to put pressure on this court in the public sphere to rule as you wish. [Reggie pissed]

    Robbins: These 12 scholars believe this is a close question.

    Walton: If I had gotten something more of substance from them, maybe.

    I’m sensing Reggie is not pleased by the lack of substance from these intelligent people at the NSA/DOJ who come to his rather-more-secluded courtroom.

  2. Peterr says:

    From that same post linked to in my earlier comment comes your observation about Walton and a quote from Walton regarding oversight of the executive branch:

    What I think Judge Walton’s decision finally came down to, though, was ensuring that the Executive can be held accountable. From the liveblog:

    Walton: Wouldn’t that undermine the purpose of this statute, that everyone is [accountable] under the laws of the US? If you work in the [White House] you still have to follow the law. If the investigative agency is linked [to] the hip with [an] investigation, then the public [can have no confidence that the] investigation is fair and just. If we have to operate this way our system of government loses significant credibility with the average Joe on the street, who already thinks the system is unfair.

    The only way to ensure that we can hold the White House accountable to the rule of law, Judge Walton seemed to be saying, is to send Libby to jail.

    Sadly, it would appear Walton cannot meaningfully sanction anyone at the NSA for this kind of misconduct, which — as he noted long ago in the Libby trial — means that the government’s credibility will continue to crumble.

  3. Peterr says:

    Walton, in 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.

    You know, if the FISCs orders were a bit more public, it would be harder for the government to evade compliance. With other people watching, it’s harder to hide.

  4. Snoopdido says:

    From the 1st Quarter Calendar Year 2012 NSA report (http://epic.org/NSA/1qcy12-violations.pdf), there is this from page 3:

    “63% (123) of 1QCY12 FISA incidents can be attributed to Operator Error as the root cause, and involved:

    o Resources ( i.e., inaccurate or insufficient research information and/or workload issues (60);
    o Lack of due diligence (i.e., failure to follow standard operating procedures) (39);
    o Human error (21) which encompassed:
    o Broad syntax (i.e., no or insufficient limiters / defeats / parameters) (12);
    o Typographical error (6);
    o Query technique understood but not applied (2); and
    o Incorrect option selected in tool (1); and
    o Training and guidance (i.e., training issues) (3).”

    As you can see, the largest number “FISA incidents” “attributed to Operator Error as the root cause” involved:

    “o Resources ( i.e., inaccurate or insufficient research information and/or workload issues (60);”

    This says quite plainly that the vaunted NSA analysts were not only careless in making their FISA queries but did shoddy research in preparation for their FISA queries. And it also speaks to shoddy, incompetent and unthinking NSA management and approval for these NSA analyst queries.

  5. rollotomasi says:

    Seems like the term “audit” is possibly being used loosely. From a read of the actual report, the numbers appear to come from a combination of self-reporting, auditor/overseer discovery and various automated alert systems. Were non-reported transactions sampled or otherwise reviewed to ensure self-reporting and automated systems were working as they should? Also, lots of different programs with apparently different systems and access procedures. I would think you would almost need a separate audit report for each program. Just a lot of loose ends in the report.

  6. Arbusto says:

    Reggie’s been on the court for six years and Presiding Judge for six months. I guess he just wanted to be damn sure that NSA was out of control/uncontrollable/unaccountable before he said something. And of course Feinstein is a waste of space. Great oversight guys.

  7. Greg Bean (@GregLBean) says:

    @Snoopdido: Unless I misunderstand, doesn’t this level of operator error actually indicate a significant capacity for operators to do as they wish. If they were constrained, how could they make this many errors?

    So, as Snowden indicated, they have open slather and can oops, make mistakes. Ex. I wonder what Marcy Wheeler has been up to? Oops, sorry, didn’t mean to look, just a mistake.

    My confidence is boosted with each new revelation.

    Oh, and to the prior story on Gellman, this Government fumbling with what can and cannot be seen, is a sure sign of a liar tied in knots and unable to keep his lies straight. It’s only a matter of time until it all unravels. Or is Hayden correct, they will increase surveillance, and unstated but a likely outcome of doing so, have to declare martial law, and we’ll see Tahrir-on-the-Hudson.

    Wouldn’t put it past them.

  8. CTuttle says:

    Aloha, Marcy…! Did you ever see such a thing… Anti-Israel Author Disinvited from University Event…

    University of Michigan disinvites author Alice Walker, who compares Israel to Nazi Germany. Was money a factor?

    …According to Walker, the invitation was rescinded due to pressure from donors offended by her virulently anti-Israel views.

    In a blog post, she quoted her agent as saying, “This afternoon I was contacted by the University of Michigan instructing me to withdraw their invitation due to the removal of funding from the donors, because of their interpretation of Ms. Walker’s comments regarding Israel. They are not willing to fund this program and the university/Women’s center do not have the resources to finance this on their own.”

    She titled the post, “In Case You’ve Ever Wondered How It Is Done: Censorship by Purse String.”

    However, a university source told the Electronic Intifada blog that the change had nothing to do with donor pressure…

    Err, Wolverines…!1!!???

  9. harpie says:

    Just wanted to share this new “protest anthem” with you all [via Kevin Gosztola at FireDogLake]

    PARTYpartyparty with the NSA!!! [20,20,24 hours a day]

    Also, it’s good to see who’s on the FISA Court at the moment [via WaPo].

    [There are evidently only two out of the required three currently sitting on the review panel…maybe they don’t do much work, there.]

  10. Snoopdido says:

    @Snoopdido: If the NSA only had fewer than 300 queries in 2012, and according to their 1st Quarter Calendar Year 2012 NSA report (http://epic.org/NSA/1qcy12-violations.pdf), they had “123 of 1QCY12 FISA incidents [that could] be attributed to Operator Error as the root cause”, then is it the case that 41+% of their query violations happened JUST in Q1 of 2012?

    Or is it the case that the “an increase of 11% for
    both E.O. 12333 and FISA incidents” means that Q2 of 2012 had 136 query violations, that Q3 of 2012 had 151 query violations, and that Q4 of 2012 had 167 query violations giving us a total of 577 query violations in calendar year 2012?

    And if that is approximately the case, how can 577 query violations in calendar year 2012 be more than the actual 300 queries in calendar year 2012 that the NSA states occurred?

  11. Snoopdido says:

    @Snoopdido: I sure hope somebody competent checks my math. In any event, in my first paragraph I meant to say that “then is it the case that 41+% of all the NSA’s queries in 2012 were query violations and happened JUST in Q1 of 2012?”

  12. P J Evans says:

    @Snoopdido:
    “‘300 queries a year’ about, or from, whom or what?” should be the next question, because that’s obviously not nearly all of the ones they had.

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