NSA Surveillance Programs Legal, to Disclose Program Information, Litt says
The intelligence community will disclose more information about surveillance programs, said Robert Litt, Office of the Director of National Intelligence (ODNI) general counsel, at the Brookings Institution on Friday. Agencies hope to disclose examples from Section 702 of FISA Amendments Act soon, he said. “It’s very hard to think about releasing an opinion that says that a particular program is legal if you are not going to disclose the program,” he said. “Now that the program is declassified, we are going back and relooking at it. Personally, I think that we will release court documents that will provide a better picture.”
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These surveillance programs were particularly alarming to people because it was the government collecting information rather than a third party, said Litt. “We care because of what the government could do with the information,” said Litt. “The government has the power to audit our tax returns, to prosecute and imprison us, to grant licenses to do business and many others. So there’s an entirely understandable concern that the government might abuse this power.”
Technology companies and nonprofit groups called for greater transparency in government surveillance in a letter to Congress and the executive branch Thursday (CD July 19 p11). Officials from those groups, who didn’t listen to Litt’s presentation and were interviewed by us after the speech, said the intelligence community needs to change. There are more questions than answers about the boundaries of U.S. surveillance, said officials from groups including the Electronic Frontier Foundation and New America Foundation.
Section 215 of the Patriot Act and the 702 program were legal, and all three branches of government knew about the programs, said Litt. “They were authorized by Congress and they are carefully overseen by the Congressional Intelligence and Judiciary committees,” he said. “They go through the approval of the Foreign Intelligence Surveillance Court and are under that court’s supervision. They are subject to court-ordered oversight in the executive branch.” The disclosures could have long-lasting consequences for intelligence work, said Litt. “Disclosures threaten to cause long-lasting and perhaps irreversible harm to our ability to respond to threats facing our nation. Because the disclosures were made by people who did not fully understand what they were talking about, they were sensationalized and they led to mistaken impressions."
There is a disconnect between Congress and the intelligence community, said Sascha Meinrath, New America Foundation’s Open Technology Institute (OTI) director. “We need to rapidly increase the amount of information available.” Litt is saying Congress knows about the programs, but lawmakers’ questions at the House Judiciary Committee hearing on Wednesday showed they weren’t well briefed on the subject, Meinrath said. The intelligence community isn’t doing enough, an EFF spokesman said. “It’s encouraging to see that legislators are expressing outrage.” The EFF with 18 other groups sued the National Security Agency in U.S. District Court in San Francisco Tuesday to stop NSA’s collection of telephony metadata (CD July 17 p4). OTI is considering joining the lawsuit because Meinrath sees the courts as the “only way to make the government take action under the First and Fourth amendments."
The Section 702 program gave information on 54 cases involving foreign terrorist organizations and 41 of these cases involved threats in other countries, said Litt. There’s no indication that government employees have abused their surveillance power, said Litt, echoing what he told the Judiciary Committee hearing Wednesday. Through targeting procedures and minimization procedures, the NSA is able to control the information, said Litt. “We target specific accounts because we are looking for specific information.” Litt’s explanation of the 54 cases had a “lame justification for the program,” said Meinrath. It’s unclear “how these cases were used to stop terrorism,” he said.
TechFreedom President Berin Szoka said the government needs more transparency. “We are asking for the government to issue its own reports, which is only going to happen if Congress asks them to do that,” said Szoka. “Whatever happens, greater transparency and scope would benefit everyone.” TechFreedom had joined the suit against the NSA for illegally collecting its call records. OTI, EFF and TechFreedom signed the letter to Congress and executive branch organized by the Center for Democracy Technology (CDT), calling for more transparency in government surveillance with a coalition of Internet and nonprofit groups. “The letter reflects a natural alliance between companies and advocates,” Kevin Bankston, CDT senior counsel, told us. “We need to have information to have civil liberties and an Internet economy trust in the cloud.” The coalition hopes to get legislation through Congress before the August recess, said Bankston.