Cybersecurity

Analysis: A Key NSA Overseer's Alarming Dismissal of Surveillance Critics

Rick Bowmer/AP File Photo

The National Security Agency's overseers have a spotty-at-best post-9/11 track record. The NSA carried out an illegal program of warrantless wiretapping during the Bush Administration. Even after the President's Surveillance Program was reformed, the agency built a surveillance dragnet that collected information on the private communications of millions of totally innocent Americans, a dramatic change in approach carried out without popular input or consent. And according to the FISA-court judges charged with overseeing the NSA—the very people who signed off on the phone dragnet, among other things—the agency has violated the Fourth Amendment and the law on at leastthousands of occasions.

Some of those violations affected millions of people.

As well, insufficient operational security recently resulted in the theft of a still unknown number of highly classified documents by an employee of an NSA subcontractor. Civil libertarians and national-security statists alike have reason to be upset.

For all of these reasons, it must be a tough time to be George Ellard, the NSA's inspector general. The entity that he heads declares itself "the independent agent for individual and organizational integrity" within the NSA. "Through professional inspections, audits, and investigations," its website adds, "we work to ensure that the Agency respects Constitutional rights, obeys laws and regulations, treats its employees and affiliates fairly, and uses public resources wisely."

Since taking his post in 2007, Ellard has scarcely made a public statement. This week, however, he participated in a conference at Georgetown, and while efforts were reportedly made to keep his press exposure to a minimum, his remarks have been reported. 

They're interesting—and do not inspire confidence. We begin with the accountprovided by Kevin Gosztola:

Ellard was asked what he would have done if Snowden had come to him with complaints. Had this happened, Ellard says would have said something like, "Hey, listen, fifteen federal judges have certified this program is okay." (He was referring to the NSA phone records collection program.) "I would also have an independent obligation to assess the constitutionality of that law," Ellard stated. "Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do."

Even on their own, these comments are strange. Many aspects of the Section 215 phone dragnet are now public. Edward Snowden is on record with specific objections to them. The same goes for lots of other NSA initiatives: As they've been publicly fleshed out, Snowden has articulated why he believes the public ought to know about them. If Ellard understands what has transpired since last June, why is he speaking as if Snowden's leaks could've been averted if his supposed "misperceptions" had been corrected? That possibility isn't consistent with the facts. Knowing their actual nature, Snowden still thinks the programs should be public.

Misunderstanding Snowden so completely is strange. A subsequent statementis worrisome. It comes via Politico:

“Perhaps it’s the case that we could have shown, we could have explained to Mr. Snowden his misperceptions, his lack of understanding of what we do,” Ellard said.

And if Snowden wasn’t satisfied, Ellard said the NSA would have then allowed him to speak to the House and Senate intelligence committees. ”Given the reaction, I think somewhat feigned, of some members of that committee, he’d have found a welcoming audience,” Ellard said in a reference to outspoken NSA critics on the panel, including Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.).

It is difficult to know exactly what this means, but it certainly appears as if the inspector general of the NSA is questioning whether the Senate Intelligence Committee members expressing alarm at surveillance practices are actually earnest.

The Politico article continues:

“Whether in the end he’d have been satisfied, I don’t know,” Ellard added. “But allowing people who have taken an oath to protect the constitution, to protect these national security interest, simply to violate or break that oath, is unacceptable.”

It's worth mentioning that Snowden never took an oath to protect national-security interests. As a CIA employee, he did take an oath to protect and defend the Constitution. Many Americans, myself included, believe that Snowden upheld his oath when he alerted the public to mass surveillance, Fourth Amendment violations, and thousands of instances of NSA lawbreaking. Other Americans believe that he violated his oath by leaking classified information to the press. 
Let's return to Gosztola's account for another Ellard quote:

"I don’t think there have been any real questions raised about the efficacy of the oversight. Nobody is asserting, for instance, that the NSA intentionally violated the law. Some people are saying that the law violates the constitution. But we abided precisely by the contours of the law,” Ellard claimed, when asked to address how effective oversight had been. “The crisis is, however, that I suspect a broad swath of people in this room don’t believe that.”

In fact, what Ellard said is factually inaccurate. I, for one, am emphatically asserting that the NSA intentionally violated the law, by which I mean that they administered programs that they knew would result in unlawful collection, knowing all the while that they'd just label that unlawful collection "incidental" after the fact. It would be as if I wrote tax-preparation software to file my 2014 return, knowing full well that its aggressive algorithm would result in more deductions claimed than I was actually owed, and then said when called on my "mistakes" by the IRS that I didn't wittingly claim any individual deduction that I knew to be bogus. 

As for the claim that the NSA abided "precisely by the contours of the law," theWashington Post says otherwise:

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.

A final alarming moment came when Ellard compared Snowden to convicted spy Robert Hanssen. Snowden "was manic in his thievery, which was exponentially larger than Hanssen’s" he wrote. "Hanssen’s theft was in a sense finite whereas Snowden is open-ended, as his agents decide daily which documents to disclose." So the NSA's IG refers to journalists from The Guardian, the New York Times, the Washington Post, and elsewhere as Snowden's "agents"?

Ellard suggests that if the public knew what national-security officials with access to classified information know, we would feel differently about Snowden's leaks.

It's possible.

But it's difficult to trust Ellard's characterizations of classified realities when his remarks about public information are so contrary to facts that we actually do know. 

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// November 21
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