NSA keeps data on Americans indefinitely

Washington, D.C. - A government watchdog testified Thursday there may have been problems with a security clearance background check conducted on the 29-year-old federal contractor who disclosed previously secret National Security Agency programs for collecting phone records and Internet data – just as news media disclosed more information about those programs.

Appearing at a Senate hearing, Patrick McFarland, the U.S. Office of Personnel Management's inspector general, said USIS, the company that conducted the background investigation of former NSA systems analyst Edward Snowden, is now under investigation itself.

McFarland declined to say what triggered the inquiry of USIS or whether the probe is related to Snowden. But when asked by Sen. Jon Tester, D-Mont., if there were any concerns about the USIS background check on Snowden, McFarland answered: "Yes, we do believe that there may be some problems."

Meanwhile, new details emerged about the scope of two recently disclosed NSA programs – one that gathers U.S. phone records and another that is designed to track the use of U.S.-based Internet servers by foreigners with possible links to terrorism.

The Guardian published two documents submitted to the secret Foreign Intelligence Surveillance Court (known as the Fisa court), signed by Attorney General Eric Holder and stamped 29 July 2009.

Document #1: http://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-a-procedures-nsa-document

Document #2: http://www.guardian.co.uk/world/interactive/2013/jun/20/exhibit-b-nsa-procedures-document

They detail the procedures the NSA is required to follow to target "non-US persons" under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.

The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.

McFarland declined after the Senate hearing to describe to reporters the type of investigation his office is conducting. Sen. Claire McCaskill, D-Mo., said she was told the inquiry is a criminal investigation related "to USIS' systemic failure to adequately conduct investigations under its contract."

"We are limited in what we can say about this investigation because it is an ongoing criminal matter," said McCaskill, chairwoman of the Senate subcommittee on financial and contracting oversight. "But it is a reminder that background investigations can have real consequences for our national security." 

Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information "inadvertently" collected from domestic US communications without a warrant.

The procedures cover only part of the NSA's surveillance of domestic US communications. The bulk collection of domestic call records, as first revealed by the Guardian earlier this month, takes place under rolling court orders issued on the basis of a legal interpretation of a different authority, section 215 of the Patriot Act.

The top secret documents published today detail the circumstances in which data collected on US persons under the foreign intelligence authority must be destroyed, extensive steps analysts must take to try to check targets are outside the US, and reveals how US call records are used to help remove US citizens and residents from data collection.

However, alongside those provisions, the Fisa court-approved policies allow the NSA to:

• Keep data that could potentially contain details of US persons for up to five years;
• Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
• Preserve "foreign intelligence information" contained within attorney-client communications;
• Access the content of communications gathered from "U.S. based machines" or phone numbers in order to establish if targets are located in the US, for the purposes of ceasing further surveillance.

The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.

The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

Of the 4.9 million people with clearance to access "confidential and secret" government information, 1.1 million, or 21 percent, work for outside contractors, according to a January report from the Office of the Director of National Intelligence. Of the 1.4 million who have the higher "top secret" access, 483,000, or 34 percent, work for contractors.

OPM's Federal Investigative Services division performs almost all the background investigations for federal agencies and nearly 75 percent of the investigators who perform background checks are contractors, according to information on the agency's website.

At the hearing, McFarland called for much closer oversight of the investigators who conduct background checks. He said that 18 background investigators and record searchers have been criminally convicted since 2006 for fabricating information in background reports.

McFarland's office is actively working on 11 fabrication cases and another 36 cases involving background investigators are pending, according to data he provided to the subcommittees.

Of the 18 investigators who were criminally convicted, 11 were federal employees and seven were contractors. Of the 47 active and pending cases, six involve federal employees and 41 involve contractors, according to McFarland. 

The NSA is one of at least 15 intelligence agencies, and combined the total U.S. intelligence budget in 2012 was $75 billion, said Steve Aftergood, director of the government secrecy program at the Federation of American Scientists, a nonpartisan think tank that analyzes national and international security issues.  

Funding for classified programs has tracked the upward trend in defense spending over the past decade, according to an analysis of fiscal year 2012 Defense Department budget request by Todd Harrison of the Center for Strategic and Budgetary Assessments.

Aftergood estimates about 14% of the country's total intelligence budget -- or about $10 billion -- goes to the NSA.
http://www.huffingtonpost.com/2013/06/20/nsa-data_n_3474820.html
http://www.guardian.co.uk/world/2013/jun/20/fisa-court-nsa-without-warrant
http://money.cnn.com/2013/06/07/news/economy/nsa-surveillance-cost/index.html

The NSA has to justify their existence or they're out of work: