By Cheryl Pellerin
American Forces Press Service
WASHINGTON, Sept. 27, 2013 – At a hearing yesterday before the
Senate Select Committee on Intelligence, Army Gen. Keith B. Alexander,
commander of U.S. Cyber Command and director of the National Security
Agency, and Director of National Intelligence James R. Clapper Jr.
discussed a NSA-managed classified intelligence program, one of two made
public by a security leak in June.
Joining Alexander and Clapper was Deputy Attorney General James
Cole. All were called to testify about both programs leaked to the press
by former NSA systems administrator Edward Snowden -- Section 215 of
the Patriot Act, also known as NSA's 215 business records program, and
Section 702 of the Foreign Intelligence Surveillance Act, or FISA.
In the months since the leaks, media reports have said the programs
involve secret surveillance by NSA of phone calls and online activities
of U.S. citizens, and revealed unauthorized disclosures of information
by NSA, generating distrust of the agency and calls for an end to the
programs.
Section 702 of FISA and Section 215 of the Patriot Act
both were authorized by the Foreign Intelligence Surveillance Act, first
approved by Congress in 1978.
Section 702 authorizes access,
under court oversight, to records and other items belonging to foreign
targets located outside the United States. Section 215 broadens FISA to
allow the FBI director or other high-ranking officials there to apply
for orders to examine telephone metadata to help with terrorism
investigations.
In 2012, these programs resulted in the
examination of fewer than 300 selectors, or phone numbers, in the NSA
database, Alexander said during a congressional hearing in July.
In his remarks, Cole described the 215 program, explaining that it involves collecting only metadata from telephone calls.
“What is collected as metadata is quite limited. … It is the number a
telephone calls … It doesn't include the name of the person called,”
Cole said. “It doesn't include the location of the person called. It
doesn't include any content of that communication. It doesn't include
financial information … It is just the number that was called, the date
and the length of the call.”
“If you want any additional
information beyond that, you would have to go and get other legal
processes to find that information and acquire it,” he added.
Such metadata can only be looked at when there is a reasonable,
articulable suspicion for a specific phone number to be queried in the
database, Cole said.
“Otherwise,” he said, “we do not and cannot
just roam through this database looking for whatever connections we may
think are interesting or in any way look at it beyond the restrictions
in the court order.”
Only a small number of analysts can make
such a determination, and that determination must be documented so it
can be reviewed by a supervisor and later reviewed for compliance
purposes, Cole added. The program is conducted according to
authorization by the FISA Court, which must reapprove the program every
90 days.
“Since the court originally authorized this program in
2006, it has been reapproved on 34 separate occasions by 14 individual
Article Three judges of the FISA Court,” Cole said. “Each reapproval
indicates the court's conclusion that the collection was permissible
under Section 215 and satisfied all constitutional requirements.”
Article Three of the U.S. Constitution establishes the judicial branch of the federal government.
Oversight of the 215 program involves all three branches of government,
including the FISA Court and the Intelligence and Judiciary Committees
of both houses of Congress, Cole said. Every 90 days, the Department of
Justice reviews a sample of NSA's queries to determine whether the
reasonable articulable requirement has been met.
DOJ lawyers meet
every 90 days with NSA operators and with the NSA inspector general to
discuss the program’s operation and any compliance issues that may
arise, Cole explained.
With respect to Congress, “we have
reported any significant compliance problems, such as those uncovered in
2009, to the Intelligence and Judiciary Committees of both houses,” he
said.
“Those documents have since been declassified and released
by the DNI to give the public a better understanding of how the
government and the FISA court respond to compliance problems once
they're identified,” Cole said.
In his testimony, Alexander told
the panel that NSA’s implementation of Section 215 of the Patriot Act
focuses on defending the homeland by linking foreign and domestic
threats.
Section 702 of FISA focuses on acquiring foreign
intelligence, he said, including critical information concerning
international terrorist organizations, by targeting non-U.S. persons who
are reasonably believed to be outside the United States.
NSA also operates under other sections of the FISA statute in accordance with the law's provisions, Alexander said.
“To target a U.S. person anywhere in the world, under the FISA statute
we are required to obtain a court order based on a probable cause
showing that the prospective target of the surveillance is a foreign
power or agent of a foreign power,” he explained.
“As I have said
before, these authorities and capabilities are powerful,” Alexander
said. “We take our responsibility seriously.”
NSA stood up a
directorate of compliance in 2009 and regularly trains the entire
workforce in privacy protections and the proper use of capabilities, he
said.
“We do make mistakes,” Alexander noted.
“Compliance
incidents, with very rare exceptions, are unintentional and reflect the
sorts of errors that occur in any complex system of technical activity,”
he said.
The press has claimed evidence of thousands of privacy violations but that is false and misleading, Alexander said.
“According to NSA's independent inspector general, there have been only
12 substantiated cases of willful violation over 10 years. Essentially
one per year,” he said. “Several of these cases were referred to the
Department of Justice for potential prosecution, and appropriate
disciplinary action in other cases. We hold ourselves accountable every
day.”
Of 2,776 violations noted in the press, he said, about 75
percent were not violations of court-approved procedures but rather were
NSA's detection of valid foreign targets that traveled to the United
States. The targets are called roamers and failure to stop collecting on
them as soon as they enter the United States from a foreign country is
considered a violation that must be reported.
“NSA has a privacy
compliance program that any leader of a large, complex organization
would be proud of,” Alexander said. “We welcome an ongoing discussion
about how the public can, going forward, have increased information
about NSA's compliance program and its compliance posture, much the same
way all three branches of the government have today.”
NSA's
programs have contributed to understanding and disrupting 54
terrorism-related events, Alexander told the panel, with 25 in Europe,
11 in Asia, five in Africa, and 13 in the United States.
“This
was no accident. This was not coincidence. These are the direct results
of a dedicated workforce, appropriate policy, and well-scoped
authorities created in the wake of 9/11, to make sure 9/11 never happens
again,” Alexander said.
In the week ending 23 Sept., he said,
there were 972 terrorism-related deaths in Kenya, Pakistan, Afghanistan,
Syria, Yemen and Iraq. Another 1,030 people were injured in the same
countries.
“The programs I've been talking about -- we need these
programs to protect this nation, to ensure that we don't have those
same statistics here,” Alexander said.
With respect to reforms,
he said, on Aug. 9 President Barack Obama laid out specific steps to
increase the confidence of the American people in the NSA foreign
intelligence collection programs.
“We are always looking for ways
to better protect privacy and security,” Alexander said. “We have
improved over time our ability to reconcile our technology with our
operations and with the rules and authorities. We will continue to do so
as we go forward and strive to improve how we protect the American
people, their privacy and their security.”
In his remarks to the
panel, Clapper said that over past 3 months he’s declassified and
publicly released a series of documents related to Section 215 Section
702.
“We did that to facilitate informed public debate about the
important intelligence collection programs,” he said. “We felt in the
light of the unauthorized disclosures, the public interest in these
documents far outweigh the potential additional damage to national
security. These documents [allow them to] see the seriousness,
thoroughness and rigor with which the FISA Court exercises its
responsibilities.”
Even in these documents, Clapper said,
officials had to redact some information to protect sensitive sources
and methods such as particular targets of surveillance.
“We'll
continue to declassify more documents. It's what the American people
want,” he said. “It's what the president has asked us to do. And I
personally believe it's the only way we can reassure our citizens that
the intelligence community is using its tools and authorities
appropriately.”
But, Clapper said, “we also have to remain
mindful of potentially negative long-term impact of over-correcting to
the authorizations granted to the intelligence community.”
Clapper added, “As Americans we face an unending array of threats to our
way of life -- more than I've seen in my 50 years in intelligence. We
need to sustain our ability to detect these threats. We welcome a
balanced discussion about civil liberties but it's not an either-or
situation. We need to continue to protect both.”
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