If Deputy Attorney General James Cole defined "every now and then" as "about every three hours", then his statement would be truthful. Otherwise, his testimony before Congress was misleading at the least and perjurious at the most, depending on what he knew. The story:
The National Security Agency has broken privacy rules or overstepped its legal authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top-secret documents.
Most of the infractions involve unauthorized surveillance of Americans or foreign intelligence targets in the United States, both of which are restricted by statute and executive order. They range from significant violations of law to typographical errors that resulted in unintended interception of U.S. e-mails and telephone calls.
The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance. In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence.
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.
In another case, the Foreign Intelligence Surveillance Court, which has authority over some NSA operations, did not learn about a new collection method until it had been in operation for many months. The court ruled it unconstitutional.
The Obama administration has provided almost no public information about the NSA’s compliance record. In June, after promising to explain the NSA’s record in “as transparent a way as we possibly can,” Deputy Attorney General James Cole described extensive safeguards and oversight that keep the agency in check.
Recall that this is the same James Cole who authorized the secret subpoena to confiscate phone records from Associated Press. For the Charles Johnsons of the world, the excuse for the thousands-per-year infringements on our rights is basically Trust Barry. Most of the eavesdropping was unintentional, says good Charles, or that NSA internal controls worked. For the rest of us, this is a problem that merits more than an investigation where Least Untruthful Clapper gets to pick the people to review the surveillance program. For one, the data haul is so massive that small errors that can result in a huge number of invasions into our privacy.
The NSA, as intelligence historian Matthew Aid shows, collects so much information online that even its mistakes are enormous. Every day, it actively analyzes the rough equivalent of what's inside the Library of Congress and "touches," to use the agency's term, another 2,990 Libraries' worth of data. With such a huge haul, even the most infrequent of error rates -- one in a hundred thousand, say -- still produces terabytes and terabytes of improperly-harvested data. It still means thousands and thousands of people are wrongly caught in the surveillance driftnet.
The NSA's defenders will point to the many times the agency's intelligence analysts followed the rules, and got things right. But that misses the point; no one expects these analysts, or the systems they use, to be flawless. The problem is that the surveillance net is so very large that even the most miniscule of imperfections can have outsized impact. And that calls into question whether the NSA's intelligence-collection efforts have grown too big for their own good.
For another, the ability to police this program is limited.
The leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans.
The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.
In other words, we only know the beans that NSA has spilled, if that. As Friedersdorf suggests, this is a good reason for an investigation by outside, independent experts, which is what Obama pledged in the first place, before he broke that pledge.
Their lesson is clear: Under cover of secrecy, government agents will commit abuses with impunity for years on end, and only intrusive Congressional snooping can stop them.
Why is another Church Committee needed now? For more than a decade, the NSA has repeatedly engaged in activity that violated the law and the Constitutional rights of many thousands or perhaps millions of Americans.
Going back to the above WaPo article, 2,776 intrusions does not mean that 2,776 people had their rights violated.
The most serious incidents included a violation of a court order and unauthorized use of data about more than 3,000 Americans and green-card holders.
In other words, a single incident of law-breaking violated the rights of thousands. Finally, the law-breaking incidences reported above were limited to Fort Meade. The inspector general didn't investigate other NSA locations. On top of all this, the Foreign Intelligence Surveillance Court is about as rubber-stamp as a court can be. But I guess this is just one of those "phony scandals" used by Obama's opponents to derail his benevolent agenda.
Above all else, Obama swore under oath to defend and uphold the Constitution. It wasn't all that long ago when he said this:
And if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.
On this I agree with the president: We do have some problems here. Folks, this is what creeping fascism and a failing president look like.