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Chief Judge Says Surveillance Court Can’t Stop NSA from Violating Privacy Rules

August 16, 2013 at 12:00 AM EDT
A new report from the Washington Post revealed the National Security Agency has violated privacy rules 'thousands of times' each year since 2008. In a follow up, chief judge Reggie Walton told the Post the FISA court isn't able to verify when the NSA oversteps its authority. Margaret Warner speaks with Carol Leonnig of the Post.
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MARGARET WARNER: For weeks, President Obama has said the NSA’s information-gathering on Americans was strictly limited and tightly overseen by the Foreign Intelligence Surveillance Court, or FISA court.

But, today, The Washington Post reported the spy agency has overstepped its legal authority thousands of times each year since Congress expanded its powers in 2008, and the FISA court’s chief judge told The Post his court doesn’t have the ability to independently verify if the spy agency is complying fully with privacy protection rules.

The report was based on documents leaked by former NSA contractor Edward Snowden.

Washington Post correspondent Carol Leonnig worked on both stories and joins me now.

And, Carol, welcome.

CAROL LEONNIG, The Washington Post: Thank you, Margaret.

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MARGARET WARNER: First of all, what, sort of information has the NSA been collecting and storing on Americans that is beyond the scope of the law or the court rules?

CAROL LEONNIG: The court’s rules are very strict on several things, but the most important is not intruding on Americans’ privacy when there is no reason to suspect that they have some link to terrorist organizations or are in communication with foreign powers.

And the violations that are documented in this memorandum from the NSA — remember, we’re only seeing a partial window. We’re seeing what the NSA headquarters reported in a year’s time, not what all the other NSA satellite offices offered — but that in those instances, they broke some of the privacy rules, and they broke some other rules that have to do with foreign intelligence gathering.

The most striking, probably, example that people are taken by is that there were a series of phone call records stored from the Washington, D.C., area code — zip code — forgive me, area code 202 — and this was a glitch. Essentially, it was because a switch missed read 202 for 20, which is the country code for Egypt.

MARGARET WARNER: Egypt.

CAROL LEONNIG: We are allowed to collect a lot of records about foreign communications, but when you start collecting a lot of Washington, D.C., phone records, it’s another story.

MARGARET WARNER: Now, had these violations been reported to the court, as I gather they are required to?

CAROL LEONNIG: What’s from the document, because it’s really an NSA internal audit, is how many of these were reported to the court. A portion them should have been that have to do with FISA authorities, when you’re looking into Americans’ records.

And we honestly don’t have the rest of the chain to know what was reported. What we do know is that there are thousands of them and that the Obama administration has assured us and the public before this came out that it happens infrequently, once in a while.

MARGARET WARNER: Now, equally startling was your companion piece, what the district court judge, Reggie Walton, said to you about the FISA court’s authority when you asked him about this. Explain that a little more.

CAROL LEONNIG: So he’s the chief judge of the secret spy court, the Foreign Intelligence Surveillance court, that is supposed to be the linchpin for the checks and balances on our government spying programs.

It takes it really seriously. It does everything in a classified, secret skiff, but it’s a diligent, careful court. What he essentially said was, there are practical limitations on what we can do, and we must trust the government to report to us these violations, because we can’t independently, with our resources, ferret that out.

MARGARET WARNER: And why can’t the court ferret that out, verifying the information independently?

CAROL LEONNIG: Well, there are the obvious issues of resources. I mean, this is a court with a number of judges who all have plenty of busy dockets themselves. Reggie Walton has a very busy docket himself.

And they have a staff of five lawyers.

MARGARET WARNER: For the whole court?

CAROL LEONNIG: Yes.

So, those lawyers receive this information about the compliance allegations. They review them. They elevate the most serious ones to a judge if it warrants it. And that’s a very practical reason why it would be impossible to be policing and looking behind the government when they report thousands of violations.

MARGARET WARNER: Now, doesn’t this compliance or violations of compliance information also have to be reported to Congress, and, what, the Department of Justice?

CAROL LEONNIG: It does.

MARGARET WARNER: Do they verify it?

CAROL LEONNIG: Well, Congress has a lot more in the way of staff for reviewing.

Do we know the degree to which they look over it? We don’t. I did find it interesting last night when we asked Senator Feinstein for her comment — and, as you know, Senator Feinstein has been a pretty arch supporter of the government…

MARGARET WARNER: Chairman of the Intelligence Committee.

CAROL LEONNIG: Exactly, and a very strong ally for the government and the NSA in supporting these efforts.

She said that she feels that the subsector, subsection of violations that she doesn’t have authority over, she should now perhaps gain authority to review some of those that have to do with foreign communications.

MARGARET WARNER: Now, what was the reaction, both from the administration and also on Capitol Hill?

CAROL LEONNIG: There’s been a lot of reaction.

Initially, the White House wasn’t commenting for our story. The NSA, I noticed this morning, issued a statement saying, these are unintentional violations, and we use this exercise always to try to improve our work, and we keep trying to improve our work so our violations will go down.

On the Hill, you already heard what I said about Senator Feinstein, but Speaker Pelosi said these are very disconcerting numbers and she wants to look more deeply into them.

MARGARET WARNER: Do you think this will add fuel to the fire behind the idea that in the FISA court, you need opposing counsel, there needs to be somebody else in there other than the government lawyers?

CAROL LEONNIG: I think this will add fuel to the concept that we shouldn’t all feel safely assured that violations are rarely happening and that oversight is robust and full.

And as for whether a privacy advocate should be added to the court, that’s really not my role. That’s one of the things that’s been mentioned on the Hill. There are other people who have raised really good practical questions about how in the dead of night a privacy advocate can be summoned to weigh in on whether or not some collection can take place. That’s something for others to hammer out.

But it clearly — these two things together, raise questions about the assurances we have received from the administration.

MARGARET WARNER: Well, Carol Leonnig, Washington Post, thank you.

CAROL LEONNIG: Thank you.