Security

Government Promises to Self-Audit Spying to Make Powers Permanent

The government wants to keep the wide spying powers Congress gave it in rush legislation this summer, and to get Congress to make the powers permanent after the six month expiration period, the spies will audit themselves and give information to select groups of Congressman, Assistant Attorney General Kenneth Wainstein told a national security conference […]

congress The government wants to keep the wide spying powers Congress gave it in rush legislation this summer, and to get Congress to make the powers permanent after the six month expiration period, the spies will audit themselves and give information to select groups of Congressman, Assistant Attorney General Kenneth Wainstein told a national security conference on Monday.

Those powers, codified in the Protect America Act passed just before Congress's summer vacation, allow the government to install wiretap rooms in the nation's phone and internet networks and force communication providers such as Skype or instant message systems to create wiretapping back doors in their software, so long as the purpose of the surveillance order is to target any person outside the United States.

Those audits will be conducted by the Office of the Director of National Intelligence and the Justice Department's National Security Division of the Justice Department. Attorney General Alberto Gonzales recently ordered the latter group to investigate the FBI's misuse of self-issued subpoenas known as national security letters.

In August, the Administration killed a competing bill, which would have allowed the secret spy court to review how the government would set up spying outposts and allowed the independent Inspector General Glenn Fine, whose Congressionally-ordered review of NSLs exposed misuse and widespread violations of departmental policy.

The Inspector General was not mentioned by Wainstein in his descriptions of the "oversight regime":

We have set up an oversight regime that goes way beyond what the statute requires. It includes rigorous internal agency audits by the agencies using this authority. And it includes regular, on-site compliance reviews by a team from the Office of the Director of
National Intelligence (ODNI) and the National Security Division (NSD)
of the Department of Justice. This DNI/NSD team has already completed its first audit, and it will complete further audits every 30 days during this interim period to ensure full compliance with the implementation procedures.

We have also agreed to provide an unprecedented level of reporting to Congress. We are giving the Intelligence and Judiciary Committees copies of the procedures we are using to implement this authority; we have promised to give them comprehensive briefs about our implementation of this authority every month throughout this renewal period; and we have promised them the results and written reports of our compliance reviews.

The FBI adopted a similar strategy with regards to NSLs in November 2001, since that Patriot Act powers also needed to be renewed by Congress. In a memo to agents, the Office of General Counsel warned:

NSLs are powerful investigative tools in that they can compel the production of substantial amounts of relevant information.
However, they must be used judiciously. [...] In deciding whether or not to re-authorize the broadened authority, Congress certainly will examine the manner in which the FBI exercised it. Executive Order 12333
and the FCIG require that the FBU accomplish its investigations through the "least intrusive " means. Supervisors should keep this in mind when deciding whether or not a particular use of NSL authority is appropriate. The greater availability of NSLs does not mean that they should be used in every case.

When the power came up for renewal, Gonzales lied and said he knew of no problems at all, despite having been sent reports about NSL abuse prior to his testimony. Congress made the FBI's NSL power permanent in March 2006.

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Photo: Daniel Lobo