When the NSA oversteps its authority

Wednesday, Aug. 21, 2013 | 2 a.m.

The National Security Agency has a difficult and urgent job: protecting Americans against terrorist attacks. If it fails at that task, there are no do-overs and no acceptable excuses. Lives will be lost and our enemies will achieve one of their objectives.

So most Americans discount the alarms about its collection of domestic phone records and interception of the communications of suspicious foreigners. The government has a good record of preventing attacks, and these programs may be one big reason.

The Obama administration defends its use of surveillance by noting that it is subject to oversight by both Congress and the Foreign Intelligence Surveillance Court. If the effort were being operated without due regard for privacy, the other branches of government could push back. For the most part, they apparently have approved of what’s gone on.

But the NSA has another obligation: respecting the law and the Constitution. The Patriot Act spells out the rules under which the government may monitor telephone and email communications, and the Fourth Amendment forbids “unreasonable searches and seizures.” It turns out the NSA has a less than spotless record on both counts.

The latest disclosure from former NSA contractor Edward Snowden, published in The Washington Post, is that in 2012, an internal audit found the agency “has broken privacy rules or overstepped its legal authority thousands of times each year” going back to 2008.

Over just one 12-month period, the audit found 2,776 instances of “unauthorized collection, storage, access to or distribution of legally protected communications.” In one case, it violated a court order.

The revelation obviously raises questions about how conscientious the monitors have been in respecting the limits of their authority. It also casts doubt on the effectiveness of established checks and balances.

In one episode, the NSA failed to inform the Foreign Intelligence Surveillance Court what it was doing for several months — and when it did, the FISC ruled the agency’s conduct unconstitutional. Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., “did not receive a copy of the 2012 audit until The Post asked her staff about it.”

It’s hard to know how serious these transgressions were, or how common. “You can look at it as a percentage of our total activity that occurs each day,” an anonymous senior NSA officer told the Post. “You look at a number in absolute terms that looks big, and when you look at in relative terms, it looks a little different.”

But Democratic Sens. Ron Wyden of Oregon and Mark Udall of Colorado — who as members of the Intelligence Committee have access to classified information — issued a statement that “this confirmation is just the tip of a larger iceberg.”

These disclosures don’t prove that the administration has deliberately evaded the law or that it has seriously infringed on the privacy of many Americans. But they underline the need for the NSA to provide more information — to its congressional oversight committees and, where reasonable, to the public — on what it is doing and how it is guarding against needless intrusions. They also confirm the value of creating an independent privacy advocate for FISC proceedings — to help the court balance the competing interests at stake.

Some things have to remain secret, but the government clearly needs to do a better job of letting the American people know what it is doing and why. Unwelcome surprises about secret programs can badly undermine popular support over time. In the fight against terrorism, an informed public is not a liability but an asset.