Who Watches The Watchmen: How The NSA Gets Around Oversight

Whistle-blowers like Bill Binny, Thomas Drake, and Edward Snowden, along with wrongly accused U.S. citizens, have been fighting for their rights. Not from terrorists, but from the U.S. government.

While they fight, many Americans have become complacent with their diminished rights and lack of privacy.

The Patriot Act passed 6 weeks after 9/11 in a climate of fear and imminent threat. It diminished freedom in the U.S., providing the government sweeping powers to spy on, arrest, and detain individuals. The original legislation provided little oversight. Since 2001, there has been a major struggle between protecting constitutional rights and increasing government powers to battle imminent terror.

Through legislation and executive orders, at least 12 actors provide oversight for the NSA program:

• The NSA itself is required under the Protect America Act to submit reports to the Intelligence Oversight Board (IOB) about discovered and reported illegal activities.
• The House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI), receive reports and oversee compliance with laws and regulations. The congressional committees may receive whistle-blower information through congressional testimony.
• The Department of Justice (DOJ), including the Office of Inspector General (OIG), is responsible for inspections, audits, investigations and reports of NSA activity. The OIG is a venue that may also receive whistle-blower information.
• The Office of General Council (OGC) provides legal advice.
• The Foreign Intelligence Surveillance Court (FISC) is the secret court where the intelligence agents apply for warrants.
• The Privacy and Civil Liberties Oversight Board, (PCLOB) reviews and analyzes executive actions on terrorism; and considers liberty concerns on laws, regulations, and policies concerning terrorism. They are required to submit at least two reports per year to congress on their activities and conclusions.
• Employees of the NSA, who are supposed to “know, understand, and obey the full laws of the Nation.”
• Citizens of the U.S. can oversee NSA activity through Freedom of Information Act requests.
• The Office of Compliance (OOC) is also given the authority to oversee conformity to government standards and policies, and may receive complaints from federal employees.

There are a few confounding things to consider about the extent of NSA oversight, and the breech of Fourth Amendment rights: loopholes in federal law that escape oversight, moral congruity and procedural justice within the NSA and the country, and the apparent conflicting mission of the NSA to violate, but also ensure, constitutional rights.

Loopholes in Federal Law

• The FISA court is a court that reviews applications for wiretapping and other invasions of privacy, granted under the threat of terrorism. All requests are reviewed ex parte and in camera, meaning without representation for the accused and in chambers.

• Under the Federal Wiretap Act, U.S. Code 18, Part 2, Chapter 206 warrants for invasion of privacy under threat of terrorism can be delayed for up to 48 hours. This is what is referred to as sneak and peek warrants. The NSA can obtain information and hold it for two days before any oversight is legally required. Also under the same chapter, roving wiretaps allow the NSA to search without specifying the people or entities they are targeting, across all districts and data sources.

• The Protect America Act allows certification of invasion of privacy, under oath, by a court, Senate, the head of any intelligence agency, or the attorney general. Activities may last for 72 hours without certification. Also, the certification must be under seal unless contested by someone. It seems unlikely that a person would contest, considering that no one but the requester knows the contents of the request and also that secret court is strictly ex-parte. The act also redefines the parameters of NSA spying to include domestic targets.

Oversight Reports

• The NSA is required to make an annual report to the DOJ. Most of these are compilations of errors in targeting that have been caught, reported, with all information ill gotten, and destroyed.

• The NSA’s recent report to the IOB reveals tasking errors, unauthorized targeting, overly-broad and poorly constructed queries, de-tasking delays (or keeping track of a target after being advised to stop), unauthorized access, software errors, non-compliance with FISA, and unsecured data.

• While most discrepancies seem inherent to the job, the Policy and Civil Liberty Oversight Board’s report concludes that the NSA activities under section 215 of the Patriot Act are unconstitutional, specifically in regards to the First and Fourth Amendments, and do not have the support of any current laws.

Moral Congruity and Procedural Justice

• Edward Snowden, who brought the NSA’s illegal activities to light, remains in Russia under political asylum. Other whistle-blowers who came before him were effectively silenced and their lives severely affected for daring to speak out against the government.

• Tom Tyler, in Moral Leadership, explains that appealing to moral sensibilities is the best way to achieve compliance, and is much cheaper than what he calls the market choices of punishment and rewards. Other important considerations are the severity of punishment and procedural justice — how leaders in an organization or community judge members’ actions — or the general ethical climate. Employees of the NSA work in an environment where standing up for their moral sensibilities may bring harsh punishment, and they must weigh their actions in a conflicted ethical climate that pits security against constitutional rights.

The Conflicting Mission of the NSA

The Freedom Act is the latest legislation passed to sure up constitutional freedoms, and is lauded by the ACLU, though they have reservations still about legal loopholes. At the same time, the government is pushing Google, Facebook, Hotmail, and Yahoo to bend cyber security to government’s spying structure. Again, warning of imminent threats after the terrorist attacks in Europe, if the government does not have invasive powers.

No amount of oversight can protect US Americans from a system, and mounting legislation, that allows breeches in constitutional protections.

In 2013, a federal judge ruled against NSA surveillance for the first time, saying:

In contrast, FBI Director James Corney commented on 60 Minutes in October 2014:

The government doesn't want the people beyond the law, and the people feel the same way about the government. The U.S. has a constitution for that. The people are in a fight for their rights, and it’s a barn-burner.

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