Skip to content
Subscribe

Who Watches The Watchmen: How The NSA Gets Around Oversight

Who Watches The Watchmen: How The NSA Gets Around Oversight
Published:

Whistle-blowers like

Bill Binny, Thomas Drake, and Edward Snowden, along with wrongly accused U.S. citizens, have been fighting for their rights. Not from terrorists, but from the U.S. government.

While they fight, many Americans have become complacent with their diminished rights and lack of privacy.

The Patriot Act passed 6 weeks after 9/11 in a climate of fear and imminent threat. It diminished freedom in the U.S., providing the government sweeping powers to spy on, arrest, and detain individuals. The original legislation provided little oversight. Since 2001, there has been a major struggle between protecting constitutional rights and increasing government powers to battle imminent terror.

Through legislation and executive orders, at least 12 actors provide oversight for the NSA program:

There are a few confounding things to consider about the extent of NSA oversight, and the breech of Fourth Amendment rights: loopholes in federal law that escape oversight, moral congruity and procedural justice within the NSA and the country, and the apparent conflicting mission of the NSA to violate, but also ensure, constitutional rights.

Loopholes in Federal Law

  • The FISA court is a court that reviews applications for wiretapping and other invasions of privacy, granted under the threat of terrorism. All requests are reviewed ex parte and in camera, meaning without representation for the accused and in chambers.
  • Under the Federal Wiretap Act, U.S. Code 18, Part 2, Chapter 206 warrants for invasion of privacy under threat of terrorism can be delayed for up to 48 hours. This is what is referred to as sneak and peek warrants.  Also under the same chapter, roving wiretaps allow the NSA to search without specifying the people or entities they are targeting, across all districts and data sources.
  • The Protect America Act allows certification of invasion of privacy, under oath, by a court, Senate, the head of any intelligence agency, or the attorney general. Activities may last for 72 hours without certification. Also, the certification must be under seal unless contested by someone. It seems unlikely that a person would contest, considering that no one but the requester knows the contents of the request and also that secret court is strictly ex-parte. The act also redefines the parameters of NSA spying to include domestic targets.

Oversight Reports

  • Most of these are compilations of errors in targeting that have been caught, reported, with all information ill gotten, and destroyed.
  • The NSA’s recent report to the IOB reveals tasking errors, unauthorized targeting, overly-broad and poorly constructed queries, de-tasking delays (or keeping track of a target after being advised to stop), unauthorized access, software errors, non-compliance with FISA, and unsecured data.
  • While most discrepancies seem inherent to the job, the Policy and Civil Liberty Oversight Board’s report concludes that the NSA activities under section 215 of the Patriot Act are unconstitutional, specifically in regards to the First and Fourth Amendments, and do not have the support of any current laws.

Moral Congruity and Procedural Justice

  • Edward Snowden, who brought the NSA’s illegal activities to light, remains in Russia under political asylum. Other whistle-blowers who came before him were effectively silenced and their lives severely affected for daring to speak out against the government.
  • Tom Tyler, in Moral Leadership, explains that appealing to moral sensibilities is the best way to achieve compliance, and is much cheaper than what he calls the market choices of punishment and rewards. Other important considerations are the severity of punishment and procedural justice -- how leaders in an organization or community judge members' actions -- or the general ethical climate. Employees of the NSA work in an environment where standing up for their moral sensibilities may bring harsh punishment, and they must weigh their actions in a conflicted ethical climate that pits security against constitutional rights.

The Conflicting Mission of the NSA

The Freedom Act is the latest legislation passed to sure up constitutional freedoms, and is lauded by the ACLU, though they have reservations still about legal loopholes. At the same time, the government is pushing Google, Facebook, Hotmail, and Yahoo to bend cyber security to government’s spying structure. Again, warning of imminent threats after the terrorist attacks in Europe, if the government does not have invasive powers.

No amount of oversight can protect US Americans from a system, and mounting legislation, that allows breeches in constitutional protections.

In 2013, a federal judge ruled against NSA surveillance for the first time, saying:

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

In contrast, FBI Director James Corney commented on 60 Minutes in October 2014:

"As a country, I don't know why we would want to put people beyond the law. That is, sell cars with trunks that couldn't ever be opened by law enforcement with a court order, or sell an apartment that could never be entered even by law enforcement." The U.S. has a constitution for that. The people are in a fight for their rights, and it's a barn-burner.

Photo Credit: Rena Schild / Shutterstock.com

Adhere to the IVN etiquette

By posting a comment, you agree to adhere to our etiquette rules: No partisan attacks, no personal attacks, substantiate your sources, no self-promotion.

Contact IVN

Questions about this article or our coverage? Send us a message. A free IVN member account is required.

Message sent

Thanks, we’ll review it and get back to you if needed.

Message not sent

Sorry, something went wrong. Please try again.

Sign in to send a message

Messages are tied to your IVN member account. Signing in is free and takes a few seconds.

Contact IVN

Questions about this article or our coverage? Send us a message. A free IVN member account is required.

Message sent

Thanks, we’ll review it and get back to you if needed.

Message not sent

Sorry, something went wrong. Please try again.

Sign in to send a message

Messages are tied to your IVN member account. Signing in is free and takes a few seconds.

Republish this article

Republishing guidelines

Republish IVN articles for free. Independent Voter News articles may be republished online or in print under a Creative Commons BY-NC-ND 4.0 license, on these terms:

  1. Credit the author and IVN. Keep the byline ("By Author Name, Independent Voter News") and the attribution note at the end, which links to the original.
  2. Keep the meaning. You may update time and place references and apply your house style. You may trim for length, as long as the cuts don't change the meaning or misrepresent the author. Keep the headline. Mark any additions as your own (for example "Additional reporting by ...").
  3. Translations are welcome. Translate faithfully, add "Translated from English by [your outlet]", and tell us at editor@ivn.us.
  4. Keep the links, including the link to the original article.
  5. Keep the tracking image. The HTML includes a 1-pixel image that counts readers on your page. It collects no personal information.
  6. Photos and illustrations. Images credited to IVN may be used with this article only. Images credited to others (AP, Getty, Unsplash, Wikimedia and so on) stay under their owners' terms. Secure the rights or switch "Include images" off.
  7. Don't sell it. You can't sell our articles or sell ads specifically against them. Your normal site advertising is fine.
  8. No implied endorsement. Don't suggest that IVN or the author endorses you, your candidates or your causes, or that donations to you support IVN.
  9. Keep labels. Opinion or analysis pieces keep that label.
  10. Point search engines to the original. Where your CMS allows, set the canonical URL to the original IVN article.
  11. No bulk or automated republishing, and don't submit our articles to aggregators (Apple News, Google News, MSN) as your own.
  12. Corrections and removals. Update your copy when we correct it, and remove it promptly if we ask. We'll contact you at the email you give us.
  13. Questions or print republication: editor@ivn.us.

IVN staff: fill in who you're inviting above, then create the invite.

Preparing the article

Who Watches The Watchmen: How The NSA Gets Around Oversight

Choose a format
  • HTML
  • Email HTML
  • Markdown
  • Formatted (.docx)
  • Plain text
  • WordPress blocks
  • PDF
Choose a platform

Photos credited to others need their owners' permission.

To for

Republishing somewhere else? Questions? editor@ivn.us