Senators Split on How to Update Surveillance Laws

The National Security Agency “received [GPS location] samples in order to test the ability of its systems to handle the data format” in 2010 and 2011, but it wasn’t used for intelligence purposes, NSA Director Keith Alexander told Sen. Ted Cruz, R-Texas. “This may be something that is a future requirement for the country, but it is not right now,” Alexander said, saying the experiment stopped in 2011. The NSA turns relevant phone numbers over to the FBI for pursuit, Alexander said. Cruz had cited contentious questioning last week at the Senate Intelligence Committee when Sen. Ron Wyden, D-Ore., pressed these same officials on whether the government pulls data from cell sites. Cruz asked Alexander if that GPS information was needed to prevent terrorism. The NSA has promised to notify Congress before any collection of location data, Alexander added. It doesn’t collect location information under Section 215 of the Patriot Act, he said.

The government shutdown has crippled and will continue to hurt U.S. intelligence agencies more with each passing day, said Alexander and Director of National Intelligence James Clapper. They described dangerous drops in funding, which prompted Cruz to blast the shutdown’s effects and call for a continuing resolution to be passed Wednesday to fund the Department of Defense and the intelligence community. Cruz has been a vocal advocate of hitching Republican opposition to the Affordable Care Act to the continuing budget resolution that Congress has, as a result, failed to pass.

"Across the intelligence communities, 72 percent of the civilian workforce is being furloughed,” said Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif, on the Senate floor Tuesday. “With the exception of a few intelligence agencies that have a significant number of military personnel, the lights are being turned off and the majority of the people who produce our intelligence, analyze that intelligence and provide warning of terrorist attacks or advise policymakers of major national security events will be prevented from doing their jobs. Simply stated, this is unacceptable."

"The danger here is this will accumulate over time,” Clapper told the committee, calling the damage “insidious.” The shutdown has “impacted us very hard,” Alexander said of the NSA, noting many furloughed employees and the “huge impact on morale.” The NSA kept employees based on the most specific threats to the U.S., he said.

Congress has warred over different proposals to update U.S. surveillance laws to increase transparency of the Foreign Intelligence Surveillance Court and adjust the rules for how the government collects bulk phone records and other data. Senate Judiciary Committee Patrick Leahy, D-Vt., has called for an end to the bulk collection of phone metadata, which he reemphasized at the hearing as he described collaboration with other lawmakers such as House Judiciary Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis. Leahy noted the importance of continuing to conduct this hearing despite widespread hearing postponements due to the shutdown. The hearing attracted protesters, Leahy acknowledged. More than half a dozen people held up signs slamming Clapper and praising former NSA contractor Edward Snowden.

Feinstein defended the surveillance program during the Judiciary Committee hearing. “I will do everything I can to prevent this program from being canceled out,” she said, insisting the bulk collection “is legal” and “we are not looking to destroy it. To destroy it is to make this nation more vulnerable.” Feinstein plans to introduce a proposal that would update the bulk collection but not end it. After the shutdown began, the Senate Intelligence Committee postponed a markup slated for Thursday of that legislation (CD Oct 2 p6).

No content is collected through the surveillance, Feinstein said, though Leahy argued that metadata collection can be just as revealing and intrusive. Feinstein described meetings in 2001 before the Sept. 11 terrorist attacks that year in which intelligence officials predicted a major attack but lacked details. “That can never be allowed to happen in the United States again,” Feinstein said, “and that’s the basis for this program.” Sen. Jeff Sessions, R-Ala., tore into media accounts of recent surveillance leaks, praised NSA workers and said “it’s unthinkable that we would dismantle this program."

Senators questioned intelligence officials on a New York Times article (http://nyti.ms/GzYqic) published Saturday that said the NSA collects social media data on U.S. citizens. “Those reports are inaccurate and wrong,” Alexander shot back. The NSA does take such “information and enrich” it but the journalists left out the word “foreign,” he said, arguing the government is not compiling any social media dossiers on Americans. The government scrutinizes the metadata of social networks abroad, an ongoing program, but with U.S. citizens, “the insinuation that we're doing that is flat wrong,” Alexander said. Not all cases in this program are reviewed by the FISA court, he said, describing some cases with only oversight from the executive and legislative branches. Alexander believes details of this program have been given to the relevant congressional oversight committees, he said. “Like many of us who have access to classified briefings, we sometimes find we find much more in the newspapers than we get in the classified briefings that you give us,” Leahy had said when first mentioning the article. Multiple senators also expressed concern that a handful of NSA analysts had used the surveillance tools to access the metadata of love interests, as NSA Inspector General George Ellard informed Grassley in a recent letter.

Leahy interrupted Alexander before the completion of his prepared testimony. “I worry we're still getting incomplete and inaccurate information from the administration,” Leahy said. He described the recurring figure of 54 disruptions of terrorist plots, which he called “plainly wrong,” not all plots and not all thwarted. He asked Alexander if he’s right to question that, and Alexander agreed. Clapper said the only metric used is “plots foiled,” but he invoked what should be called a “peace of mind” metric. After the Boston marathon, such surveillance was crucial in investigating whether there was a subsequent bombing plot in New York City, Clapper observed. (jhendel@warren-news.com)