Pundits on the right and left are certain the government has been lying to us, repeatedly, about the National Security Agency (NSA) surveillance programs. In fact, it’s the media that repeatedly have gotten seemingly blockbuster stories wrong.
We’ve seen the pattern now: A big story suggesting the administration is reading your e-mails. Then come the facts. Well, not really reading them. And there’s court oversight. Oh, yes, and Congress has been informed. Oh, and the NSA self-monitors.
The cycle repeats itself, apparently, each time Edward Snowden coughs up another fur ball of half-digested facts.
My friends over at Lawfare have done what most reporters have not. They’ve actually read through reams of declassified documents. What they relate is nothing like the media coverage of the NSA, understandably because the latter go for an angle, a flashy headline and a gotcha narrative instead of explaining what the NSA does and how it does it.
I’d encourage you to read the series of posts detailing the documents, but I’ll give you a sense of what they’ve found and how it differs from the impression one gets from the media.
Ben Wittes begins with an overview:
[T]he story these documents tell is actually complicated. It involves a fascinating, iterative back-and-forth over many months between the executive branch and the [Foreign Intelligence Surveillance Act] FISA Court. It involves remarkable self-reporting by the executive branch—both to the court and to the Congress. It involves a court that looks [nothing] like a rubber stamp. It involves a significant rebuke by that court to the government both for the substance of its activities and for the accuracy of a series of representations it had made in the past. And it involves a swift effort by the government to correct the problem—one that within a few weeks the court accepted.
For example, if you look at the October 3, 2011 FISC opinion by Judge John D. Bates, you’d see:
For starters, Judge Bates became aware of the problem because the government itself brought it to his attention. And their dialog over the subject offers a window into just how robust actual FISC oversight of intelligence operations really is. . . . This disclosure by the government led to a months-long back-and-forth between the government and the court. From May through September, the government provided answers to the court’s questions about this form of collection. There were written submissions and meetings between the court staff and the Justice Department. There was a hearing. There were extensions of time so the government could answer questions fully. And at the end of this process, Judge Bates okayed most of what the government was seeking, but he also had problems.
Bates goes through a meticulous analysis of the collection procedures, not objecting to collection of metadata (which not only is permissible under the Fourth Amendment, it’s not even covered by it) but the incidental collection and retention of non-security related material. It is clear that Bates is micro-managing the collection procedures. Wittes writes:
Second, in April 2012, the government let the [FISA court] know that the NSA had made a “corporate decision” to purge any and all identifiable data that it had acquired through its upstream collection efforts prior to the amended minimization procedures. That effort, Judge Bates reports, is now complete to the extent that is technically feasible. In other words, the NSA responded to the residual problem with a nuclear strike against the relevant data.
Finally, the documents Lawfare combs through undermine the claims of certain lawmakers that they are shocked, shocked to find there is surveillance going on in there. Not only did the NSA report on the entire saga to Judge Bates, but it also made the document detailing this and much more available to all members of Congress. Consider what was in the white paper made available to all lawmakers:
It is an overview of surveillance programs under §702, more generally: the reasoning behind the provisions; targeting and minimization procedures under them; the oversight role of the FISC, the ODNI, the DOJ, and Congress; and the requirements that §702 authorizations be reauthorized by the FISC at least every year.
It has a discussion of targeting procedures. The section on compliance describes the “extensive oversight” process conducted by the IC—in which noncompliance with targeting and minimization procedures must be reported to the DOJ and the ODNI and in which a joint NSD-ODNI team reviews targeting decisions “routinely,” at least once every 60 days. This team also investigates potential noncompliance episodes and reviews each IC agency’s targeting and minimization procedures
In that trove of information was also “an account of one of seven (it appears) instances in which collection under 702 resulted in valuable national security information: the plot to bomb the New York City subway system, halted when an email caught by §702 collection from a target known to be affiliated with Al Qaeda was sent to Najibullah Zazi, the man ultimately arrested in 2009 in Colorado for planning the attack.”
Do you feel disoriented, as if everything you’ve read in the media bears almost no resemblance to what actually has been going on? The problem is not a rogue NSA, but an NSA handicapped (by its security obligations) from defending itself against ill-informed hysterics in the media and Congress. And, to be honest, I’m a bit worried that our intelligence community is being hamstrung and micromanaged by a court, a sign that the war on terror has been turned into an exercise akin to criminal law enforcement.
Part of the problem is the White House’s refusal to give a comprehensive explanation and defense of the program for fear of antagonizing its left-wing base. The cowering White House prefers hysteria fueled by ignorance to the political cost it may pay for telling the truth. It would rather see a finely run and effective program discredited than have MSNBC and Mother Jones say mean things about it.
Healthy skepticism about the government is essential. But these days you’d be better to doubt most of what the media spew out on this subject — it’s wrong and terribly misleading.