Intelligence Lawyers Explain Surveillance Reforms, Denounce Leahy Bill
Intelligence officials cautioned against extensive changes to the government’s surveillance programs that would make the intelligence community what FBI Acting General Counsel Patrick Kelley called “less agile, less informed, less focused and less effective.” The group of lawyers -- representing the FBI, National Security Agency, Department of Justice and the Office of the Director of National Intelligence at a Privacy and Civil Liberties Oversight Board public hearing -- did agree Monday that the agencies would be open to what ODNI General Counsel Robert Litt called “a variety of reforms.” He cited issues such as shorter retention periods for data, more oversight measures and greater transparency. The surveillance overhauls proposed in the recently introduced USA Freedom Act are opaquely worded and inherently flawed, both he and Kelley said.
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"This is designed as an alarm system that is a rapid reaction program,” said Justice Department Deputy Assistant Attorney General Brad Wiegmann, referring to the government surveillance programs authorized under Patriot Act sections 215 and 702. That doesn’t mean lawyers aren’t “heavily involved” in reviewing every determination to query the surveillance database, he said. The determination is good only for 180 days for U.S. citizens, and every 90 days DOJ audits each determination, said NSA General Counsel Rajesh De. Each decision is based on a “legal standard that does have origins in jurisprudence,” he said.
In the past year, there were 288 decisions to search the database collected under the Section 215 bulk collection of telephone metadata, Litt said. In each incident, there was a “reasonable articulable suspicion” (RAS) that a certain “selector” -- a phone number -- might have links to terrorist operatives, he said. Wiegmann cited a laptop obtained when a foreign government arrests a terrorist. If that laptop contains U.S. phone numbers, that could lead to an RAS determination, he said. It’s “effectively the same standard used for stop and frisk for a law enforcement officer to pat someone down on the street,” De said.
Stop and frisk is a “highly controversial program,” said PCLOB Board Member James Dempsey, referring to New York City’s policing policy. At least in the city’s program, the issue is resolved immediately, he said. The consequences of querying the database are different, Litt said. One can be arrested during a stop-and-frisk search, but “the only consequence” that can occur from searching the database is the selector is given to the FBI for “further investigation,” he said. “If there’s any desire to intercept the communications,” that requires a judicial warrant, said Litt. The program identifies which “avenues” merit further investigation, he said. “The important thing to remember is this program is a discovery program."
"The more you add on to the standard before you can investigate,” the less useful the tool becomes, Litt said, which is why he thinks the bill from Sen. Patrick Leahy, D-Vt. (CD Oct 30 p7) is misguided. The bill “has the presumption that we know the person we're after,” Kelley said. “The essence of terrorism prevention is we don’t know who we're after.” The bill would also inappropriately heighten the standard for more individual intelligence-gathering orders authorized under Section 215 -- for instance hotel records and car records -- not just the bulk phone metadata collection orders, Wiegmann said. The government could “absolutely” separate the bulk collection program from the more specific records gathering orders, Weigmann said.
"We've repeatedly said we're open to a variety of reforms so long as they don’t eliminate” the program’s utility, Litt said. He listed four possibilities: retaining collected information for shorter periods; minimizing the number of “hops” that can be performed on each selector (doing a query on the contacts of all the original selector’s contacts); after-the-fact reviews of each RAS determination; and more transparency to the “manner and extent the program is used,” without allowing each company to break down the types of surveillance requests it receives (which the USA Freedom Act would allow).
The NSA is already reporting to the Foreign Intelligence Surveillance Court every 30 days, De said. Because the NSA already keeps written documentation of all RAS determinations for DOJ review, it wouldn’t be an insurmountable burden to use “that 30-day vehicle … to provide RAS determinations to the FISC,” he said. Litt said that the intelligence community would be “open to considering” that extra FISC review, “in concept.” Wiegmann agreed: “Ex post reviews” of RAS is “something worth considering.” Extending FISC approval too far could undercut the counterterrorism programs’ effectiveness, said Litt. “If you start to say FISA court needs to approve every targeting decision, you're going to bring the intelligence community to a halt.”