21st Century Spies: U.S. Tries to Make Rules for Those Who Play Out of Bounds

NSA documents unveil further issues with policing America's covert operators.

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Former CIA and NSA Director Michael Hayden notoriously advocated for intelligence operators getting "chalk dust on their cleats." This cheerful analogy was designed to explain how spies know the rules of the game, and sometimes must run right up against them – or slightly over – to get the job done.

[READ: NSA Releases Documents Showing It Spies on Americans]

If intelligence agents are operating in an arena, then the fans got a slow motion replay this week.

New documents unveiled Wednesday offer what the NSA hopes is proof of how it keeps analysts and operators from stepping too far out of bounds.

The insights, following massive leaks from former intelligence contractor Edward Snowden, have raised yet more questions among an American public still trying to jive reports of 21st century spycraft with their inherent freedoms.

"There is a yawning divide between people who work in intelligence and everyone else," says John McLaughlin, who served as interim head of the CIA in 2004 after spending four years as the deputy director. "People don't understand NSA's mentality. They are meticulous about not invading someone's privacy."

The only real constituency that intelligence agents and analysts have is through congressional oversight committees allowed to receive classified briefings, he says. It's difficult for the American people to identify with agencies like NSA and CIA which, unlike the military, remain a mystery to the average citizen.

NSA acknowledged Wednesday that the technology it began using in 2008 had inadvertently tracked emails and other communications between innocent Americans. Documents the director of National Intelligence declassified include a 2011 ruling from U.S. Foreign Intelligence Surveillance Court – the secretive body that oversees intelligence agencies – which instructed the NSA to cease the practice and remedy the failings in its gathering efforts.

McLaughlin says this is largely due to "a revolution in technology."

"We need to get off the NSA's back here. They are dealing with the need to acquire communications intelligence in the midst of the greatest communications revolution in history," he says. "Why did it take three years to figure it out? I don't know. But I don't think they were sitting on it and hiding it and saying, 'We must not tell anyone.' I think they were figuring out what happened and how to fix it."

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The kind of intelligence NSA gathers is the true foundation for all American intelligence agencies, he says.

Both critics and advocates of these practices point to the paradox of creating public oversight over a secretive organization. An intelligence official on Wednesday told reporters that the newly declassified documents would show "a sense of the really effective self-policing that goes on at the NSA." Intelligence agencies are required to root out and report wrongdoing, along with successes, to regular closed-door briefings with congressional oversight committees. At times, the court created under the Foreign Intelligence Surveillance Act will force the NSA or other spy agencies to change the way they carry out espionage.

Many government watchdogs believe there should be more.

"I don't think this is enough oversight," says Alan Butler, advocacy counsel at the D.C.-based Electronic Privacy Information Center. "The opinion that was released [Wednesday] was a pretty strong indication that it's not enough oversight."

Language in an Oct. 3, 2011 ruling illustrates the FISA court's concern over the NSA's ability to police itself.

"The court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program," according to footnote 14 in the ruling.

It goes on to say that contrary to the government's assurances, NSA had been "routinely running queries of metadata using querying terms that did not meet the required standard for querying."