Several key elements in the bombshell story about the government’s secret surveillance programs have been either underreported or left out of the narrative altogether.
The first is the degree to which all three branches of the government — executive, legislative and judicial — oversee these programs. The second is how an unknown, 29-year-old, high school dropout with no academic or work credentials to speak of gained access to America’s most critical national security secrets. The first element, often completely missing from network nightly news stories, is that surveillance programs such as these are being closely monitored under laws established by Congress and overseen by a special court of federal judges.
The second story is a scandal of enormous proportions inside the Obama administration; namely, its failure to establish and enforce a leakproof system of access rules among intelligence agency employees, especially among private, contract workers employed by outside consultants.
In this case, the culprit is Edward Snowden, a low-level technical specialist who was hired barely three months ago by the consulting firm Booz Allen Hamilton, which provides an army of contract specialists for the top-secret National Security Agency.
The fact that someone with scant credentials — who not that many years ago was a security guard at the University of Maryland — could so easily gain access to the nation’s top secrets exposes a gaping hole in the administration’s internal security system and has put the nation’s safety in jeopardy.
As the story has rapidly unfolded, you would think that the surveillance program, which gathers data from phone calls and foreign communications on the Internet, was overseen by no one.
Last week, as the little-known surveillance programs triggered renewed debate, Director of National Intelligence James R. Clapper sharply criticized the news media for leaving out a critical component in the story; namely, the “extent to which these programs are overseen by all three branches of government.”
It was a justifiable complaint, because the oversight system is an elaborate one, set forth in law.
Every surveillance initiative must be approved by the Foreign Intelligence Surveillance Court, created by Congress in 1978. It is composed of 11 specially selected federal judges chosen by the chief justice of the Supreme Court.
Justice Department lawyers must go before one of the judges on this panel to win approval of each and every surveillance action. They must present their case in written and oral arguments that set forth why the court should sign off on the surveillance and must defend their request under intense questioning by the jurist. Last year, the court approved 1,789 eavesdropping applications. One request was withdrawn and some 40 others were modified to obtain the court’s approval.
The judges exercise special vigilance to ensure that eavesdropping on foreign targets will not unwittingly violate the Constitution’s Fourth Amendment rights “against unreasonable searches.” There was only one case during this period when the court found this to be the case.
These judges take their work seriously and dismiss any notion they have become rubber stamps for the government. “It has opened my eyes to the level of hatred that exists in the world,” U.S. District Judge Reggie Walton, the court’s chief judge, told The Washington Post in 2009.
At the same time, the House and Senate Intelligence Committee members are briefed on the government’s classified national security activities, but are barred from publicly revealing what they are told.
“The Intelligence Committee knew and members [of Congress] could go into the Intelligence Committee room and read the documents,” Jennifer Hoelzer, a former staff assistant to panel member Sen. Ron Wyden, Oregon Democrat, told the newspaper this week.
Is there a need to fine-tune the Patriot Act, under which government surveillance operations are approved and conducted? Perhaps. That will be fully explored in the coming debate and likely hearings.