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The NSA Needs to Stop Digging

New developments in the widening scandal over National Security Agency (NSA) eavesdropping are more hair-raising than before, if that is imaginable. The attention-grabbing headline is that an NSA internal audit showed more than 2,700 abuses of the regulations governing this spying over a year long period, but the details of this particular story and developments surrounding it are increasingly disturbing. The information revealed many of the points made here and elsewhere and puts flesh on the bare bones of previously speculative analysis. The new revelations go to every one of the areas covered earlier. It is past time the blindfolds come off and the NSA wiretapping be seen for what it is, a massive abuse. Let us take the current revelations and put them into meaningful context.

Congressional Oversight: Senator Diane Feinstein (D-CA), chairwoman of the Senate Select Committee on Intelligence (SSCI), when confronted with the leaked NSA abuse audit, said her unit—the responsible Senate committee—had never seen the document. Feinstein reported that the SSCI does receive abuse tabulations, but not with the detail or specificity of the leaked audit. Worse, the senator indicated that the abuse data given to Congress covers only those cases that rely on the Foreign Intelligence Surveillance Act (FISA). The leaked audit shows an entire other category of eavesdropping that is not based on FISA and in which the level of abuse is almost three-and-a-half times greater. Meanwhile, on the House side, the House Permanent Select Committee on Intelligence (HPSCI) played the Obama administration’s game. An anodyne justification paper the administration sent to Capitol Hill in 2011 to support its bid to re-authorize enabling legislation, a paper that parses the term “relevant” to claim expanded powers, was not even circulated to legislators. Instead the HPSCI laid on a series of briefings—hardly a good vehicle to impart detailed information—that busy congresswomen and –men were unlikely to attend. This is the reality behind the administration’s claims of intimate congressional oversight of NSA eavesdropping.

Foreign Intelligence Surveillance Court (FISC) Oversight: In a written statement to the Washington Post, FISC Chief Judge Reggie B. Walton explicitly stated that “the FISC is forced to rely upon the accuracy of the information that is provided to the Court.” In a 2008 case not reported back to the Court the NSA collected masses of telephone data on Washington, DC citizens in the mistaken belief it was Egyptian phone calls being monitored. Actually Walton’s panel, with only five lawyers on staff to review compliance, has minimal capacity to investigate. Equally to the point, there is no evidence the Court is supplied abuse information from the NSA audits covering anything other than FISA cases, now revealed to be a small fraction of the total. Not counting applications for physical or combined surveillance, in 2012 the FISC faced 1,789 applications for electronic surveillance plus 212 for access to (the now notorious) “business records.” It did not deny any. The government withdrew one. However, an indication of the government’s expansive view of its authority to eavesdrop lies in the fact the Court saw fit to modify forty of the surveillance applications and two hundred of the ones for business records.

Agency Avoidance of Oversight: To Director of National Intelligence James Clapper’s false denial that the government collects any information on Americans can now be added NSA Director General Keith Alexander’s obfuscation that his agency does not collect “data” on Americans even though the NSA’s general directive governing collection defines telephony metadata as one kind of data. Agency employees have been instructed to substitute generic information for detailed explanations in its applications to the FISC and reports to Congress. The excuse is that this produces lists which can be reviewed more quickly and the recipients can always ask for the details. And, of course, there is the question of just what data is furnished to the overseers.

Massive Abuse: In a hastily-arranged conference call (no doubt recorded) with reporters, organized to take the heat off the revealed audit, NSA compliance director John DeLong countered criticisms of the number of violations of the rules on database queries (roughly two dozen per month) by stating this represents a minuscule fraction of the twenty million database searches the NSA conducts every month. To put that differently, all that metadata collected on all phone calls is being constantly put to use. How does this not qualify as “massive?” Also eyebrow-raising, given the fact the public has been told that only twenty-two NSA employees are able to access the database, is the calculation that on a search-per-employee basis that works out to a figure of nearly 91,000 searches per employee per month—more than three thousand per day. Clearly this is a machine-based system and that raises the additional question of the human being taken out of the loop altogether. No wonder the NSA thought that Washington, DC was Egypt.

What the NSA Audit Reveals: All this is before we even get to the contents of the agency violation audit. Some of the 2,776 incidents it cites individually involve thousands of messages and telephone calls. The first thing to note about this report is that, while the administration has made much in public of its periodic audits of this electronic spying, the auditors actually discovered fewer than ten per cent of the recorded violations. Almost that many are reported as having been “self-discovered” or as resulting from scanning of traffic. (This last category implies actual reading of messages.) The vast majority of violations tabulated—nearly two-thirds—were uncovered by automated systems. We’re lucky to have the automated systems because the NSA audit shows that the number of identified violations increased by 73 per cent from the spring of 2011 to the winter of 2012. In an official statement given to the Washington Post after that newspaper revealed the audit, the National Security Agency, while refusing to comment on whether trends are up or down, declared it had examined the longer period of 2010 through this summer. The agency gave the number 1,162 as the peak incidence of quarterly eavesdropping violations over the period. This number, it should be noted, is considerably greater than the highest figure contained in the leaked document. The NSA also conceded that the most recent quarterly violations record is above average. The question left begging is how many violations were never discovered or—like the Washington/Egypt case—have been minimized or left out of the audit reports.

Diplomatic Disaster: In a previous commentary I referred to the diplomatic cost of this electronic spying. That price is becoming increasingly evident. The United States has now lost the opportunity for a summit conference with the leaders of Russia—a nearly precise replay of how the U-2 Affair of 1960 destroyed a planned summit between the West and the Soviet Union. The secretary of state of the United States has been rebuked publicly by the Brazilian foreign minister during a Latin American trip. Germany is demanding a new formal agreement with the U.S. to cover what espionage will be permitted between the two partners. If the Germans succeed, other nations will follow. –And these are merely the developments that can be seen on the surface.

The deepening morass of the NSA scandal needs to be ended. The first rule of holes is to stop digging. Measures suggested thus far, with the Obama administration essentially bargaining for conditions that will permit it to continue this spying, will not solve the problem. Secrecy will not dull the political storm that sharpens every day. A myopic focus on the leaker contributes nothing. The spooks contrived a program, shrouded in secrecy, that they guarded zealously even as it impinged upon, and then transgressed, legal and constitutional boundaries, and now costs United States national security more than its value as spying tool. The exceedingly thin “results” that officials point to as demonstrating that value shine a bright light here. Apprehension of a Somali terrorist supporter as against loss of intelligence capability in Germany? Loss of a summit plus abrogation of Constitutional rights compared to the arrest of a terrorist bomber of whom the FBI was already aware? The problem is the program itself.