NSA FISA Surveillance: NSA Violations ‘Tip Of A Larger Iceberg,’ Senators Warn

When the Washington Post reported last week that the National Security Agency broke privacy rules and legal restrictions thousands of times per year, the Obama administration predictably downplayed the report. The number of willful mistakes was “minuscule” while the vast majority was unintentional, the NSA’s top compliance officer said Friday.

But two U.S. senators warn that the Post’s disclosures, based on documents leaked by former NSA contractor Edward Snowden, are not even the full extent of the NSA’s rule-breaking. “We believe Americans should know that this confirmation is just the tip of a larger iceberg,” Democratic Sens. Ron Wyden of Oregon and Mark Udall of Colorado said in a joint statement Friday.

Wyden and Udall, who both sit on the Senate Intelligence Committee, have for years been trying to raise alarm bells about the intelligence community’s surveillance projects. Limited to what they can do by committee rules as well as the top-secret nature of the programs, the senators have spent several years trying to alert the civil liberties community to programs they believed violate Americans’ rights. Even though Snowden’s leaks have revealed some of the NSA’s collection programs, the two senators believe there is more information the public needs to know -- even if they can’t say exactly what it is they want the public to know about.

In their statement Friday, the two dropped a few more hints. “In particular, we believe the public deserves to know more about the violations of the secret court orders that have authorized the bulk collection of Americans' phone and email records under the USA PATRIOT Act,” they wrote, referring to the bulk collection of data on all domestic calls, including calls where one end is foreign. “The public should also be told more about why the Foreign Intelligence Surveillance Court has said that the executive branch's implementation of section 702 of the Foreign Intelligence Surveillance Act has circumvented the spirit of the law, particularly since the executive branch has declined to address this concern.”

In Oct. 2011, the Foreign Intelligence Surveillance Court (FISC), which oversees the NSA’s collection programs, issued an opinion finding that a form of collection under section 702 of the 2008 FISA Amendments Act -- the same provision under which the government gathers the content of foreign electronic communications -- was unconstitutional. Thanks to Wyden’s agitating, privacy activists became aware of the opinions existence and ultimately sued the Department of Justice for the release of the opinion. The DOJ recently agreed to release a version of the opinion no later than Wednesday.