Senators Push National Security Officials for Information on Efficacy of Surveillance Programs

Telephone metadata collected under Patriot Act Section 215 “made a contribution” in 12 of the 54 “plots that were disrupted over the life of these” surveillance programs, NSA Deputy Director John Inglis said. Although the metadata were critical in only one investigation, “that’s not how these programs work,” he said. “You have a range of tools at your disposal.” Law enforcement agencies “need all of these tools,” as “each tool plays a different role,” FBI Deputy Director Sean Joyce said, comparing metadata and other sources of information to a baseball team. “You have your most valuable player, but you also have the players that hit singles every day,” he said. More information may be more beneficial to law enforcement agencies, but “you have to know where the balance is,” Leahy said. “We'd have more security if we strip-searched everybody in America, but we're not going to do that."

The government is engaging in “ad hoc” transparency, and the lack of real transparency is “a critical problem at the center of this debate,” said Sen. Al Franken, D-Minn., who chairs the Privacy Subcommittee. Franken pointed to the declassification of the FISA order authorizing metadata collection, which was released minutes before Wednesday’s hearing was scheduled to begin (http://1.usa.gov/1ebRMsS). Agencies knew the hearing was scheduled for Wednesday and “might have thought about this weeks ago” if they were aiming for true transparency, he said. Agencies have been working to declassify the court order for weeks, said Office of the Director of National Intelligence General Counsel Robert Litt. “It’s a rather time-consuming interagency process to reach consensus on what can be released.” Franken said he would introduce a bill that reflected concerns expressed in a letter from privacy and First Amendment advocates to the White House earlier this year (http://bit.ly/13wbD0Y). The bill -- which will be supported by Leahy and Sen. Richard Blumenthal, D-Conn. -- would “allow private companies to disclose aggregate figures about the number of FISA orders they're receiving,” he said.

"We would place this nation in jeopardy if we eliminated” the metadata and Internet surveillance programs, but the programs could be changed to better protect Americans’ privacy, said Sen. Dianne Feinstein, D-Calif., who chairs the Intelligence Committee. The surveillance programs put law enforcement in a much better position to address national security concerns and prevent attacks, said Feinstein. “I think we need to prevent an attack wherever we can from happening,” but “that doesn’t mean we can’t make some changes.” Companies should be able to speak more publicly about the surveillance requests they receive from the government, and the National Security Agency may be able to reduce its retention period from five years to two or three years, she said. “These are things that can be done to increase transparency but not to stop the program."

Agencies should be held accountable for national security leaks, like those perpetrated by Edward Snowden and Bradley Manning, Leahy said. “If two data breaches of this magnitude occurred in the private sector, somebody would have been held accountable by now.” The NSA has mechanisms in place to prevent leaks like the one Snowden managed, and “investigations are under way” to determine how such a leak occurred, Inglis said. The system’s mechanisms “obviously failed ... if a 29-year-old school dropout can come in and take out massive, massive amounts of data,” Leahy said. “Has anybody been fired? Has anybody been admonished? ... How soon will you know who screwed up?” Inglis said the agency understands that the system’s checks failed, but “we don’t get to know where precisely they failed,” because they could have failed at multiple places in the system. The NSA has “instituted a range of mechanisms, not simply one” to try to catch anyone who tries to leak the way Snowden did, but “there are many other ways that someone might try to beat the system,” Inglis said.

The metadata collection program has privacy protections in place, said Deputy Attorney General James Cole. The metadata contain no personally identifiable information, such as names or Social Security numbers, and government officials can only search the databases with “reasonable, articulable suspicions that the phone number being searched” is tied to terrorist organizations, he said. If an agency wants access to the content of conversations, it must get a warrant from FISC, he continued. This is less information than one would get through a traditional subpoena in a criminal proceeding, Sen. Jeff Sessions, R-Ala., said. “I believe everything in the Patriot Act that we passed was consistent in principle to the very things that had been done by law enforcement for years and decades,” he said; there may be “new technologies, but essentially the principles were maintained.” In 2012, the FBI received 12 reports, “tipping less than 500 numbers” from the metadata database, Inglis said. Rep. James Sensenbrenner, R-Wis., an author of the Patriot Act, said in June he was “extremely troubled by the FBI’s interpretation” of the law.

Blumenthal said he plans to introduce legislation to reform the FISC process, including a bill that would create a role for a “special advocate” when there are significant issues of law “so that different sides are presented, challenges are made, and the judge or panel has the benefit of that contention.” The current FISC system “stacks the deck against the protection of our civil liberties,” he said, and an advocate role can be added without affecting the speed or efficacy of the FISC process.

FISC judges should have “the ability to appoint a security-cleared attorney to represent the interest of the public” when the federal government asks for new or broader surveillance powers, said James Carr, a FISC judge from 2002-2008 and current judge on the U.S. District Court in Toledo, Ohio, during the hearing’s second panel. Being able to hear multiple perspectives on the surveillance requests would lead to better decisions, he said. “There were a couple of occasions ... in which I felt as a district judge that it would have been useful ... to have somebody to speak in opposition of the request and hear the other side.” Currently, only the government can appeal a FISC decision, but if a lawyer was involved to represent the public’s interest, that lawyer could appeal FISC decisions, he said. The creation of an adversarial role in the FISC process would “be a step in the right direction,” said ACLU Deputy Legal Director Jameel Jaffer during the second panel. “I don’t think it’s enough, it has to be paired with some other reforms,” including reforms that provide the public with more transparency into how the government interprets its authority. “The debate is about should the public know what the government’s policies are, and I think in a democracy, that shouldn’t be a debate at all,” Jaffer said.