Administration declassifies more NSA surveillance documents

Ahead of a Senate Judiciary Committee hearing on Wednesday, Director of National Intelligence James Clapper declassified and released a trio of documents that outline the limits, oversight, and utility of a government surveillance program that collects the telephone call records of Americans.

That program, the telephone "metadata" collection program, is one of two surveillance programs instituted in the wake of the 9/11 terror attacks that have since been scrutinized for privacy violations after they were leaked by Edward Snowden, a former contractor with the National Security Agency.

In the newly declassified documents, the Justice Department emphasizes the oversight and strict limits governing the telephone data collection. Many of the points are by now familiar: The metadata collected by the government include phone numbers and call duration but not names, addresses, or the content of the telephone calls. The metadata can only be explored further if officials have a reasonable suspicion that a phone number is connected with terrorist elements. The program was implemented by Congress, which is regularly briefed on its operation, and it is overseen by the federal court system, relevant congressional committees, and, internally, by auditors within the executive branch.

Those and other points have been made repeatedly by administration officials defending the program, but the documents also emphasized the utility of the programs, striking a preemptive blow against lawmakers who have suggested that they may not be as useful a counterterrorism tool as the administration suggests.

"These two collection programs significantly strengthen the Intelligence Community's early warning system for the detection of terrorists and discovery of plots against the homeland," then-Assistant Attorney General Ronald Weich wrote to the chairmen and ranking members of the House and Senate intelligence committees in 2011. "Importantly, there are no intelligence tools that, independently or in combination, provide an equivalent capability."

"The attacks of 9/11 taught us that applying lead information from foreign intelligence in a comprehensive and systemic fashion is required to protect the homeland," he continued, "and the programs discussed in this paper cover a critical seam in our defense against terrorism."

Lawmakers at Wednesday's Senate Judiciary Committee hearing, however, were skeptical that the program has been as useful as the administration suggests. The chairman, Sen. Pat Leahy, D-Vt., said that officials have "conflated the efficacy" of the two programs that were leaked, suggesting that the telephone metadata program has been significantly less critical to the effort to disrupt terrorist plots than the program that surveys foreigners' internet use.

He suggested it was no "coincidence" that officials have linked the two programs, but said, "It needs to stop...I think the patience of the American people is beginning to wear thin."

When Leahy asked National Security Agency chief Keith Alexander to provide information about the effectiveness of the telephone records collection, Alexander provided a list of 54 plots that were disrupted as a result of the two programs.

But Leahy pronounced himself "not convinced," saying the list "simply does not reflect dozens or even several terrorist plots that [the telephone metadata program] helped prevent, let alone 54 as some suggested."

John Inglis, the deputy director of the Office of the Director of National Intelligence (DNI), pushed back, saying that of the 54 plots that were disrupted by the two programs, 13 had a "homeland nexus," meaning they were being organized, in part, by people on American soil. 12 of those 13 plots were exposed, in part, by the intelligence contributions of the telephone data collection, he added.

He said it was difficult to say that, but for the telephone metadata program, the plots would not have been disrupted. "That's not necessarily how these programs work," he explained, saying that, of the "distinguished but complementary" tools at the disposal of the intelligence community, one might tip them off to a plot, while another might give them insight about the nature of that plot.

Inglis suggested that at least one terrorist plot - a 2009 attempt to bomb the New York City subway system - may not have been disrupted but for the contribution of the telephone data surveillance.

FBI deputy director Sean Joyce buttressed Inglis' point, asking, "How many dots do we need? ...We need all these tools. They are different."

He offered a baseball analogy to defend the utility of the telephone metadata program. "You have your most valuable player, but you also have the players who hit singles every day."

Under subsequent questioning, Joyce allowed that the utility of the telephone program "initially, is not as valuable," but he insisted it played a "crucial" role in closing the gaps and seams in America's intelligence network that were exposed by the 9/11 attacks.

"There is a difference in the utility of the program, but what I say is each and every tool is valuable," he said. "We must have the dots to connect the dots."

Sen. Dianne Feinstein, D-Calif., the chairwoman of the Senate Intelligence Committee, said she supports the program and believes it is a critical tool to protecting the homeland, but added, "That doesn't mean we don't need to make some changes."

Several lawmakers floated potential changes to the telephone metadata program that could minimize the government's intrusion into individuals' privacy, such as limiting the scope of the metadata collection or allowing the telephone companies - rather than the government - to hold onto the records.

Robert Litt, the DNI's general counsel, said the administration is "open to reevaluating" the programs to earn more public trust, noting that the White House has asked the DNI to make recommendations about how the programs could be amended to preserve their efficacy while more scrupulously safeguarding individuals' privacy.

  • Jake Miller

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