NSA Withholding Details of Thousands of Foreign Intel Violations From Congress
DEFENSE ONEMarc Ambinder August 16, 2013
The National Security Agency, exploiting an executive order loophole, does not give Congress detailed information about unlawful signals intelligence collection on United States citizens when those violations come from programs that focus exclusively on foreign intelligence collection outside the U.S., an intelligence official told Defense One on Friday.
In an internal audit report leaked to The Washington Post by former NSA contractor Edward Snowden, these intelligence collection violations are referred to as Executive Order 12333 transgressions, after the 1981 order sanctioning all NSA activities worldwide. On its website, NSA says it uses “E.O. 12333 authority to collect foreign intelligence from communications systems around the world.”
“Twelve-Triple-3,” as it is known to NSA analysts, is the agency’s bible and specifies the types of foreign intelligence that it can legally collect without court oversight. It also requires that inadvertent collection of unlawful intelligence -- primarily raw data collected on U.S. citizens -- be “minimized” or anonymized, and then destroyed.
The 1978 FISA act forced the NSA to obtain a court order before they could collect foreign intelligence from U.S.-based targets, U.S. citizens, corporations or residents. Section 702 of the 2008 FISA Amendments Act allows NSA to use U.S. communication infrastructure to target foreigners “reasonably believed” to be outside the United States. Sections 704 and 705(b) permit the NSA to target U.S. persons who are acting as agents of a foreign power or terrorist group, but the NSA must get a FISA order before they can begin interception. Finally, under the business records provision of the PATRIOT Act, the NSA can obtain, with court certification, telephone records from all American service providers.
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Rep. Gowdy on NSA spying program scandal: People of 'scared and distrustful' of government
With: Rep. Trey Gowdy
This is a rush transcript from "On the Record," August 16, 2013. This copy may not be in its final form and may be updated.
DANA PERINO, FOX NEWS GUEST HOST: Good evening. I'm Dana Perino, in for Greta Van Susteren.
In the latest news about the NSA giving Americans yet another reason to distrust our government, The Washington Post revealing that the NSA has broken privacy rules thousands of times every year since 2008.
And the chief judge of the secret court that's supposed to police the government's spying program says that the court has limited ability to do its job, the NSA issuing this response, quote, "When NSA makes a mistake in carrying out its foreign intelligence mission, the agency reports the issue internally and to federal overseers and aggressively gets to the bottom of it."
CONGRESSMAN TREY GOWDY joins us. Congressman, thanks so much for being here on a Friday evening. Let me ask you, when you first heard of this news last night, were you surprised or was it in line with what you thought was probably happening?
REP. TREY GOWDY, R-S.C.: Well, Dana, I would like to tell you that I'm still surprised when government disappoints us and when there's evidence that we can't trust people we put in positions of power, but I'm beyond that point. I wasn't surprised. I was surprised at the pervasiveness of it, the fact that it was thousands of incidents.
Here's what does surprise me. I know having three branches of government is tedious sometimes. I know that that is disappointing to the executive branch. But I wonder how many of my colleagues in Congress were briefed that there were thousands of errors made with respect to this program because I have a sneaking suspicion the number is zero. That's how many of my colleagues were told ahead of time before we had to learn from a leaker to a newspaper that there were thousands of violations.
PERINO: So I believe that Congressman Rogers's office says they did see the memo because they get regular reports. But if it was -- if the NSA is doing trillions of searches over -- you know, looking for a needle in a haystack, is a couple of thousand violations that were pretty much computer-generated, not intended incidences by the intelligence community - - do you think that in some way, they could say, Look, this is a computer- generated problem, this is not our intent, is to violate the law and we get to the bottom of it when we see it?
GOWDY: I think in a vacuum, you could make that argument. But on the heels of Benghazi and Fast and Furious and James Rosen's scandal and this diminution of trust that people have across all demographic groups in government, no.
It's not enough to say, Well, there's human error involved. Yes, in a vacuum, in a relationship that's grounded in trust, can you forgive episodic shortcomings? Yes.
But right now, Dana, people's image of government is not a blindfolded woman holding a set of scales. It is Lois Lerner invoking the 5th Amendment before a committee of Congress. That is what kids my children's age think of when they think of government is obfuscation and hiding and only admitting it once you're caught. And that is not conducive with a trust relationship.
And if we don't get that figured out, I'm not worried about winning elections, I'm worried about the republic. If we don't get this figured out that people who are governed have consented to be governed have to have trust in the people we have put in positions of responsibility -- the fact that they report it to one another, what good does that do?
And I'm happy that Representative Rogers knew about it. That's one of 435 members of the House. How about those of us who were not on the intelligence community -- Intelligence Committee but we're asked back home about this program? What are we supposed to say?
PERINO: That's -- I'm not -- I'm glad you brought that up because you were -- you voted for the legislation that was put forward that would have adjusted the NSA funding and -- to try to do something about what is perceived by some as privacy violations. Since you've been home on the August break, are you hearing about this from people? Like, what -- is this on top of mind for them, that they want this issue addressed?
GOWDY: Yes, ma'am. And I'm hearing about it because I'm a former prosecutor who usually balances the scale towards public safety. I voted for the Patriot Act reauthorization. I heard about that when I came back home. In fact, I helped some of the leaders in Congress convince colleagues a year ago to vote for the reauthorization. But I'm not going to do it anymore. And Dana, I'm not going to do it anymore because the author of the Patriot Act, Jim Sensenbrenner, says it's being used a way that he never envisioned.
I had a town hall last night, and if I had to tell you the dominant theme, is people are scared and they are distrustful. And that is across party lines. It's across ideological lines. They just don't trust government, and we're not going to make it if we don't get that fixed.
PERINO: What do you think, then, is the remedy coming forward -- coming back? When Congress comes back to town, do you think that there's any way that Congress could actually get together and do something? And especially when the White House today, which seems to comment on everything, actually didn't comment on this Washington Post report at all?
GOWDY: You know, Dana, we had Attorney General Mukasey who came and spoke to a group of us, and I asked him a legal question which I thought was entirely appropriate to ask, since we're talking about the 4th Amendment. He held up a picture of the twin towers and said, Do you want this again?
Well, you can do that with any issue. I mean, you can use that to justify reading people's e-mails, if you want to. We have to have a conversation about how we have balanced public safety with privacy. Both are of constitutional significance. But how we balance it because there is a belief that we have skewed the balance more towards public safety and away from privacy.
The real complication is that we have asked people to prevent crime, not investigate crime after it happened like in Boston, but we've asked them to prevent it. So you have that challenge along with balancing privacy and public safety. And I think there's a growing mood in Congress on both sides of the aisle that we have overskewed it towards public safety and away from privacy. And that is very difficult for a former prosecutor to say, but I believe it.
And is there an opportunity to work on that when we get back? Yes. Justin's amendment almost passed. It didn't almost pass because people want to see this program go away, it almost passed because members of Congress feel they have no power over this program. So imagine how the people who send us to D.C. feel. We don't think we have enough information, and we're supposed to. So yes, there's an opportunity to fix it...
PERINO: Is it fair to say, then, that you don't think that what President Obama announced last week in his press conference about a new board to oversee this is going to be good enough for you?
GOWDY: Well, he's had a board that had 14 members, and now it's down to 4. No, I'm not interested in advisory boards. And in fact, we have one. It's called Congress.
PERINO: Right.
GOWDY: It's called the legislative branch. If you want an advisory board, we have one. So you're going to have to just stop letting a few select people know what's going on with these intelligence programs. You're going to have to let everyone know. And if you don't, then you're going to find some of these tools are not available anymore.
PERINO: It sounds reasonable to me. Congressman, thank you so much.
