Bloomberg News

Lawmakers Probe Willful Abuses of Power by NSA Analysts

August 24, 2013

The leaders of U.S. congressional intelligence committees said they want to probe the intentional abuses of surveillance authority committed by some National Security Agency analysts in the past decade.

“I am reviewing each of these incidents in detail,” Dianne Feinstein, a California Democrat and chairman of the Senate intelligence panel, said in a statement, after the NSA confirmed to Bloomberg News yesterday that some analysts deliberately ignored restrictions on their authority to spy on Americans.

“Any case of noncompliance is unacceptable, but these small numbers of cases do not change my view that NSA takes significant care to prevent any abuses and that there is a substantial oversight system in place,” Feinstein said.

The incidents, chronicled by the NSA’s inspector general, provide additional evidence that U.S. intelligence agencies sometimes have violated the legal and administrative restrictions on domestic spying, and may add to the pressure to bolster laws that govern intelligence activities.

Republican Representative Mike Rogers of Michigan, chairman of the House intelligence committee, is reviewing the cases of intentional misconduct in detail, his spokeswoman, Susan Phalen, said in a statement.

There were “approximately a dozen” cases in the past 10 years that “involved improper behavior on the part of individual employees,” Phalen said.

Most of the cases didn’t involve the communications of Americans, Feinstein said.

Willful Violations

Republican Representative Justin Amash of Michigan is seeking details about the incidents, his spokesman, Will Adams, said in a statement. Amash proposed a measure last month that would have denied the NSA funding to collect telephone records on millions of Americans. It fell seven votes short of passing.

“Over the past decade, very rare instances of willful violations of NSA’s authorities have been found,” the agency said in a statement to Bloomberg News. “NSA takes very seriously allegations of misconduct, and cooperates fully with any investigations -- responding as appropriate. NSA has zero tolerance for willful violations of the agency’s authorities.”

The compilation of willful violations, while limited, contradicts repeated assertions that no deliberate abuses occurred.

Army General Keith Alexander, director of the NSA, said during a conference in New York on Aug. 8 that “no one has willfully or knowingly disobeyed the law or tried to invade your civil liberties or privacy.”

‘Misleading Statements’

President Barack Obama told CNN in an interview broadcast yesterday he is confident no one at the NSA is “trying to abuse this program or listen in on people’s e-mail.”

“There’s a pattern of the administration making misleading statements about its surveillance activities,” Jameel Jaffer, a deputy legal director at the American Civil Liberties Union, said in a phone interview. “The government tells us one thing, and another thing is true.”

A secret court that oversees the NSA said in a declassified legal opinion from October 2011 the agency substantially misrepresented the scope of surveillance operations three times in less than three years.

Obama’s administration should make the cases of intentional misconduct public so Americans can assess their significance, Jaffer said.

The cases involved inappropriate actions by people with access to the NSA’s vast electronic surveillance systems, according to an official familiar with the findings who spoke on the condition of anonymity to discuss classified intelligence.

Executive Order

In a few cases, NSA officials or contractors used agency surveillance tools or data to spy on people in which they had romantic interests, said two U.S. officials familiar with the cases, speaking on the condition of anonymity.

The deliberate actions didn’t violate the 1978 Foreign Intelligence Surveillance Act or the USA Patriot Act, the NSA said in its statement. Instead, they overstepped 1981 Executive Order 12333, issued by President Ronald Reagan, which governs U.S. intelligence operations.

The actions, said a second U.S. official briefed on them, were the work of overzealous NSA employees or contractors eager to prevent any encore to the Sept. 11, 2001, terrorist attacks.

The agency has taken steps to ensure that everyone understands the legal and administrative boundaries on NSA activities, whom to consult when questions arise, and the consequences of violations or willful ignorance, said the official, who spoke on the condition of anonymity because details on the cases are classified.

Defending NSA

Feinstein said her committee has never identified an instance in which the NSA has intentionally abused its authority under the Foreign Intelligence Surveillance Act.

Intelligence officials have attributed most abuses of the FISA restrictions on the NSA’s surveillance of domestic phone calls, e-mails and other communications to technical or inadvertent errors.

Legal opinions declassified on Aug. 21 revealed that the NSA intercepted as many as 56,000 electronic communications a year of Americans who weren’t suspected of having links to terrorism, before a secret court that oversees surveillance found the operation unconstitutional in 2011.

A May 2012 internal government audit found more than 2,700 violations involving surveillance of Americans and foreigners over a one-year period. The audit was reported Aug. 16 by the Washington Post, citing documents provided by former NSA contractor Edward Snowden.

John DeLong, the agency’s director of compliance, first referred to deliberate abuses of the 1981 executive order on Aug. 16, telling reporters there had been rare instances of “willful violations” of legal authority and the privacy rights of U.S. citizens. He said there had been “a couple over the past decades,” according to a transcript provided by the agency.

“When they do occur, right, they are detected, corrected, reported to the inspector general and appropriate action is taken,” he said.

To contact the reporter on this story: Chris Strohm in Washington at cstrohm1@bloomberg.net

To contact the editor responsible for this story: John Walcott at jwalcott9@bloomberg.net


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