Thursday, December 5, 2013
By Chris Strohm / Bloomberg News
WASHINGTON — Some National Security Agency analysts deliberately ignored restrictions on their authority to spy on Americans multiple times in the past decade, contradicting Obama administration officials' and lawmakers' statements that no willful violations occurred.
"Over the past decade, very rare instances of willful violations of NSA's authorities have been found," the NSA 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 incidents, chronicled in a new report by the NSA's inspector general, provide more evidence that U.S. agencies sometimes have violated legal and administrative restrictions on domestic spying, and may add to the pressure to bolster laws that govern intelligence activities.
The inspector general documented an average of one case per year over 10 years of intentionally inappropriate actions by people with access to the NSA's vast electronic surveillance systems, according to an official familiar with the findings. The incidents were minor, the official said, speaking on the condition of anonymity to discuss classified intelligence.
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 legal and administrative boundaries, 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 the inspector general's report is classified. The report was provided to the congressional intelligence committees, according to administration officials.
The compilation of willful violations, while limited, contradicts repeated assertions that no deliberate abuses occurred.
Army Gen. 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."
Sen. Dianne Feinstein, a California Democrat who heads the Senate Intelligence Committee, and Rep. Mike Rogers R-Mich. and chairman of the House Intelligence Committee, have defended the NSA.
Feinstein said in an Aug. 16 statement that her committee "has never identified an instance in which the NSA has intentionally abused its authority to conduct surveillance for inappropriate purposes."
Rogers said on CBS's "Face the Nation" on July 28 that there were "zero privacy violations" in the agency's collection of phone records of Americans.
The lawmakers' staffs since have parsed the comments by their bosses, distinguishing between violations of the law governing electronic surveillance and the deliberate violations of the 1981 executive order.
Susan Phalen, a spokeswoman for Rogers, said in an Aug. 16 statement that Rogers meant there hadn't been "willful and intentional violations of law."
Feinstein meant there hadn't been any intentional violations of the NSA's authority under the Foreign Intelligence Surveillance Act, according to her office.
John DeLong, the NSA's director of compliance, first referred to 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.
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.
In a declassified legal opinion from October 2011, the court said the agency substantially misrepresented the scope of surveillance operations three times in less than three years.
A May 2012 internal government audit found more than 2,700 violations involving NSA 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.