WASHINGTON — His voice rising to make his point clear, Sen. Patrick Leahy, D-Vt., bluntly declared the “American people expect and deserve honest answers” about the National Security Agency’s massive data-collection program.
In the chairman’s opening remarks this morning at a Senate Judiciary Committee hearing on “Strengthening Privacy Rights and National Security: Oversight of FISA Surveillance Programs,” he pointedly added it has been all too difficult to get straight answers from the NSA.
Leahy scolded Director of National Intelligence James Clapper, who was not present, for giving false testimony to Congress.
In a March 12 hearing, Sen. Ron Wyden, D-Ore., asked Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
“No, sir,” Clapper replied.
“It does not?” asked a surprised Wyden.
“Not wittingly,” said Clapper. “There are cases where they could inadvertently, perhaps, collect, but not wittingly.”
After the NSA’s huge data-collection program was disclosed, Clapper apologized to the Senate Intelligence Committee for his “clearly erroneous” statement.
At this morning’s Judiciary Committee hearing Leahy warned such actions are causing the patience of the American people to wear thin, but more importantly, they are losing trust.
The government will always need information to “connect the dots,” noted Leahy, asking rhetorically, “So what’s going to be next? When is enough, enough?”
The chairman insisted Congress must make sure there is sufficient transparency as the government seeks to find the right balance between security needs and citizens’ rights to privacy.
Leahy spoke slowly to emphasize his point that the phone records of everyone in the hearing room reside in the NSA database. But, he sharply observed, just because the government can collect all that data, it doesn’t mean it should.
He is not convinced it is necessary, and if it is not effective, “it has to end.”
Leahy went on to strongly question the effectiveness of the program, disagreeing with comments made last month by NSA Director General Keith Alexander, who said phone and internet surveillance had disrupted 54 terrorist plots.
Leahy said the list of such plots reported to Congress is not in the dozens, “let alone 54 as some have suggested.”
Alexander was not at today’s hearing, but NSA deputy director John Inglis was there to say phone surveillance helped disrupt or discover 12 attacks.
Inglis said the 54 plots referred to both the phone data-collection program and a separate program that collects Internet data.
Ranking member Sen. Charles Grassley, R-Iowa, asked witness and Deputy Attorney General James Cole whether the NSA is collecting the name, address or social security numbers of Americans.
Cole said no, but then in an apparent contradiction said that information “exists” but cannot be accessed unless there is reasonable suspicion the information is associated with terrorists.
That appears to contradict what WND has previously reported.
The NSA has argued it is only collecting what it calls “meta-data,” such as phone numbers and records of when phone calls were made.
Critics, including former NSA contractor James Snowden, who revealed the data-collection program, says that is not true.
Snowden claims even low-level analysts at the NSA can access the content of Americans’ phone calls and emails whenever they want without a warrant.
His claims appear to be backed up by documents obtained by the London Guardian and the Washington Post.
The papers reported two documents submitted to the Foreign Intelligence Surveillance Court (FISA) court by Attorney General Eric Holder on July 29, 2009, detailed the procedures the NSA is to follow to minimize the collection of data on U.S. citizens.
But it showed loopholes so broad the NSA could still collect domestic communications and use them for any number of reasons.
The documents reportedly show the NSA’s own analysts have the power to decide who to target for surveillance without going to the courts or even their superiors.
The guidelines are supposed to provide procedures for guarding Americans’ privacy but they also give the NSA the latitude to keep information obtained by surveillance under certain conditions.
That includes when the information contains “significant foreign intelligence”, evidence of a crime, a threat to harm people or property or is believed be relevant to cybersecurity.
The classified documents also show the NSA’s own guidelines allow analysts to collect and keep the contents of phone calls and emails of American citizens and legal residents under a “wide range of circumstances,” according to the Washington Post.
President Obama has also claimed the NSA does not look at the contents of emails and phone calls unless it goes to a FISA judge and obtains a warrant.
He said the NSA activities “do not involve listening to people’s phone calls, do not involve reading the emails of U.S. citizens or U.S. residents, absent further action by a federal court, that is entirely consistent with what we would do, for example, in a criminal investigation.”
But, as WND reported in June, a key Democrat revealed the president’s account is not accurate.
Rep. Jerrold Nadler, D-N.Y., said he was “startled” to learn NSA analysts can decide for themselves whether to access the content of a domestic phone call.
Nadler emerged from a secret briefing for members of Congress and said the NSA allows analysts to listen to calls without court authorization.
He said the NSA accesses the contents of phone calls “simply based on an analyst deciding that.”
The legal standards for monitoring phone calls also apply to emails, text messages and instant messages, which means the NSA also may be accessing the content of those communications without court authorization.
Declan McCullagh of CNET broke the story and observed, “[I]t also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.”
Additionally, the Post disclosed the existence of NUCLEON, a top-secret NSA program which “intercepts telephone calls and routes the spoken words” to a database.
The paper reported top intelligence officials in Obama administration “have resolutely refused to offer an estimate of the number of Americans whose calls or e-mails have thus made their way into content databases such as NUCLEON”.
A FISA warrant is technically required to intentionally target the communications of American citizens or people inside the U.S.
When the NSA does get a warrant from the FISA court it can resemble a blank check.
A warrant obtained by the Guardian was only one-paragraph long and did not contain detailed legal rulings or explanations.
Signed by a FISA judge in 2010, it declared “the procedures submitted by the attorney general on behalf of the NSA are consistent with US law and the fourth amendment.”
The procedures let analysts decide for themselves if a person is located overseas, if the agency has no specific information on the target’s location.
The NSA is supposed to use a variety of resources including IP addresses, public information and information from other agencies to determine if the potential target is located outside the U.S.
But, even if it later turns out the target was located in the U.S., analysts are still permitted to listen to calls and look at messages to verify the location.
And warrants aren’t even used to obtain the bulk of the data collected.
The reason the discretion of the NSA analysts is so broad seems to stem from Section 702 of the FISA Amendments Act (FAA), which was renewed for five years last December.
It allows the NSA to collect large scale data from any country, as long as the target is believed to be overseas.
It is that broad authority the NSA uses in the PRISM program to obtain massive amounts of data from internet providers.
It also appears to explain why those companies have claimed they have turned over online content only pursuant to a court order.
They appear to be referring to the broad authorization of the FISA Amendment Act (FAA), not individualized warrants for specific individuals issued by the FISA court.
The NSA reportedly uses the FAA to compel telephone and internet companies to turn over the communications of anyone it chooses.
The Guardian reports the FISA court “plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA.”