Just the “Facts”: How Good Are the “Checks” on NSA Surveillance?

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Two months after former NSA contractor Edward Snowden leaked information revealing the government’s widespread capability to gather, store and analyze emails, phone calls and internet traffic, President Barack Obama promised a “vigorous public debate, guided by our Constitution, with reverence for our history as a nation of laws, and with respect for the facts.”

“Understanding the facts of this complicated policy is important,” reiterated Josh Earnest, the principal deputy White House press secretary on Monday.

On Wednesday, the Office of National Intelligence launched a tumblr with the administration’s public statements, declassified documents and a list of “hot topics” — like “civil liberties” — to provide “immediate, ongoing and direct access to factual information” on the surveillance conducted by the American intelligence community.

So what are the facts? FRONTLINE decided to take a closer look at the administration’s statements about Snowden and the NSA programs. This will be the first in a series of posts comparing what government officials and others say  — and what they’re actually doing.

Obama: “Checks Are in Place” on NSA Surveillance.

And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC, – President Obama, Aug. 9, 2013 press conference

So who’s doing the checking? The administration has pointed to two entities — an independent review board, and a secret court — charged with overseeing the government’s surveillance programs. But both have recently indicated that the government didn’t fully inform them about the extent of its operations.

The Privacy and Civil Liberties Oversight Board, which consists of five members appointed by the president and confirmed by the Senate, only began its work in earnest in recent months.

It was established in 2007, but didn’t have a quorum until 2012, and no confirmed chairman until May. According to its most recent report (pdf), the board first learned about the NSA’s use of Section 702 of the Foreign Intelligence Surveillance Amendment Act — which allows the collection of data on non-U.S. citizens — in a January 2013 briefing. The report says the board then requested more information.

The board didn’t start looking into the NSA’s use of Section 215 of the Patriot Act — the provision that allows the collection of phone and other records — until after Snowden’s disclosure, according to the group’s report.

After Snowden’s leaks revealed the extent of the surveillance programs, Chairman David Medine released a statement saying that the board was “undertaking a review of the recently revealed surveillance programs as a top priority” and would release a public report with its findings and recommendations.

The government’s secret court, the Foreign Intelligence Surveillance Court, is charged with evaluating the constitutionality of its surveillance policies. But a newly declassified document shows the NSA repeatedly misled the court about the extent and functions of its operations, making it difficult for the court to assess the programs.

In a declassified 2011 court ruling released by court order on Wednesday, the court said it was “troubled” by what it marked as the third time in less than three years that the government revealed a “substantial misrepresentation regarding the scope of a major collection program.”

The court said, for example, that it approved the NSA’s bulk acquisition of phone call detail records in March 2009 based on a “flawed depiction” of how the NSA uses the metadata, a “misperception” that had existed since 2006, “buttressed by repeated inaccurate statements made in the government’s submissions, and despite a government-devised and Court-mandated oversight regime.”

The court added that it had no choice but to rely on the government’s assurances about the program operations.

After the Snowden leaks, Obama announced a new, “independent” group that would provide a separate review of surveillance operations. “We need new thinking for a new era,” he said. But the group’s credibility is already being questioned. Obama initially asked James Clapper, the head of U.S. intelligence, to set up the panel, but later said the White House would choose the members “in consultation with the intelligence community.”

This week the White House confirmed the independent panel will be composed of four former government officials, three of which worked under the Obama administration.

As noted above, we’re thinking of making this a regular feature on the FRONTLINE site. Let us know in the comments if you’ve seen other statements you think we should check out.

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