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Secret Court Chief Judge Says Surveillance Program Oversight Powers Are Limited

By Ben Armbruster  

"Secret Court Chief Judge Says Surveillance Program Oversight Powers Are Limited"

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Judge Reggie B. Walton

Judge Reggie B. Walton

CREDIT: American University

The chief judge of the secret court that overseas the U.S. government’s surveillance programs said on Thursday that his court is limited in its oversight abilities and that it is resigned to trusting government reports when it improperly spies on Americans.

The comments from U.S. District Judge Reggie B. Walton came after the Washington Post reported on Thursday that an internal audit found that the National Security Agency broke privacy rules and overstepped legal authorities “thousands of times each year since Congress granted the agency broad new powers in 2008.”

The Foreign Intelligence Surveillance Court “is forced to rely upon the accuracy of the information that is provided to the Court,” Walton told the Post in a separate story. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”

The auditing documents, which were provided to the Post by former NSA contractor Edward Snowden, show that incidents of overreach — 2,776 in total between from May 2011 to May 2012 — involved typographical errors and unauthorized interception of communications. But “the most serious incidents,” the Post reports, “included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card holders.”

The Post notes one particular instance from 2008 in which an error led to the collection of telephone numbers in Washington, DC instead of Egypt:

In one instance, the NSA decided that it need not report the unintended surveillance of Americans. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a programming error confused the U.S. area code 202 for 20, the international dialing code for Egypt, according to a “quality assurance” review that was not distributed to the NSA’s oversight staff.

But Walton’s description of the FISC’s limited oversight abilities “contrasts with repeated assurances from the Obama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts,” the Post notes, adding that “[t]hey have said that Americans should feel comfortable that the secret intelligence court provides robust oversight of government surveillance and protects their privacy from rogue intrusions.

An anonymous White House official authorized to speak to the Post played down the audit, saying the NSA is “a human-run agency operating in a complex environment with a number of different regulatory regimes, so at times we find ourselves on the wrong side of the line.” The official added: “You can look at it as a percentage of our total activity that occurs each day. You look at a number in absolute terms that looks big, and when you look at it in relative terms, it looks a little different.”

Senate Intelligence Committee chair Dianne Feinstein (D-CA) said she first learned of the audit after inquiries from the Washington Post but said in a statement to the paper that her committee “can and should do more to independently verify that NSA’s operations are appropriate, and its reports of compliance incidents are accurate.”

Update

The New York Times updated its story on the NSA’s internal audit pointing out that the area code mix up with Egypt and Washington, DC involved the collection of metadata, not the contents of the telephone calls.

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