NSA Spy Chief: We Should’ve Told You We Track Your Calls
02.17.14
Spy Chief: We Should’ve Told You We Track Your Calls
The U.S. government long considered its collection of
Americans' call records to be a state secret. Now the Director of National
Intelligence admits it would have been better if Washington had acknowledged
the surveillance in the first place.
Even the head of the U.S. intelligence community now
believes that its collection and storage of millions of call records was kept
too secret for too long.
The American public and most members of Congress were
kept in the dark for years about a secret U.S. program to collect and store
such records of American citizens on a massive scale. The government’s legal
interpretation of section 215 of the Patriot Act that granted the authority for
this dragnet collection was itself a state secret.
Then came Edward Snowden, the former NSA contractor who
leaked the court warrant authorizing the surveillance—along with troves of
other top-secret documents. Since that first disclosure of the secret warrant,
Director of National Intelligence James Clapper has had to defend the
government’s activities against a skeptical Congress and wary public.
In an exclusive interview with The Daily Beast, Clapper
said the problems facing the U.S. intelligence community over its collection of
phone records could have been avoided. “I probably shouldn’t say this, but I will.
Had we been transparent about this from the outset right after 9/11—which is
the genesis of the 215 program—and said both to the American people and to
their elected representatives, we need to cover this gap, we need to make sure
this never happens to us again, so here is what we are going to set up, here is
how it’s going to work, and why we have to do it, and here are the safeguards…
We wouldn’t have had the problem we had,” Clapper said.
“What did us in here, what worked against us was this
shocking revelation,” he said, referring to the first disclosures from Snowden.
If the program had been publicly introduced in the wake of the 9/11 attacks,
most Americans would probably have supported it. “I don’t think it would be of
any greater concern to most Americans than fingerprints. Well people kind of
accept that because they know about it. But had we been transparent about it
and say here’s one more thing we have to do as citizens for the common good,
just like we have to go to airports two hours early and take our shoes off, all
the other things we do for the common good, this is one more thing.”
Since the first Snowden revelations in June, Clapper has
declassified reams of material relating to the 215 program, including opinions
and warrants signed by the top secret court that approves domestic snooping.
But he has not publicly acknowledged until now his thoughts that the initial
secrecy surrounding the program was ill-considered.
It’s a bit of an adjustment in Clapper’s public stance.
The intelligence chief wrote in a letter to Sen. Ron Wyden, that the leak of
the 215 program along with others “will do significant damage to the
Intelligence Community’s ability to protect the nation.” (Of course, Snowden
leaked more than the broad outlines of the program that Clapper said he
would’ve liked disclosed.)
“I probably shouldn’t say this, but I will. Had we been
transparent about this from the outset, we wouldn’t have had the problem we
had.”
Ben Wizner—a legal adviser to Snowden and the director of
the American Civil Liberties Union’s Speech, Privacy and Technology
Project—said he agreed with Clapper’s current assessment. “If Clapper is
suggesting that the American people should have been consulted before the NSA
engaged in a mass phone call tracking program, I emphatically agree,” he said
“Whether we would have consented to that at the time will never be known, we
are now having a debate in Congress and in the courts that we should have had
then.”
Last month, President Obama defended the 215 program in a
major speech on government surveillance programs. But he also ordered a
government review into the feasibility of a third party storing the call
records as opposed to the government.
While this option is studied, Obama placed new limits on
when intelligence analysts can query the database of call records for this
interim period. These new limits mean that phone calls will only be pursued
that are two steps, as opposed to three steps, away from a phone number
suspected to be linked to a terrorist group. Also an analyst will only be
allowed to query the call records after a “judicial finding or in the case of a
true emergency,” Obama said.
Clapper still defends the 215 program, too. The storage
of the phone records allows NSA analysts to connect phone numbers of suspected
terrorists overseas to a possible network inside the United States. Other U.S.
intelligence officials say its real value is that it saves work for the FBI and
the NSA in tracking down potential leads by ruling out suspicious numbers
quickly.
In the interview Clapper said the 215 program was not a
violation the rights of Americans. “For me it was not some massive assault on civil
liberties and privacy because of what we actually do and the safeguards that
are put on this,” he said. “To guard against perhaps these days low probability
but a very (high) impact thing if it happens.” Clapper compared the 215 program
to fire insurance. “I buy fire insurance ever since I retired, the wife and I
bought a house out here and we buy fire insurance every year. Never had a fire.
But I am not gonna quit buying my fire insurance, same kind of thing.”
Snowden’s disclosure of the 215 program for Clapper also
had personal consequences. Less than a week after the Guardian and Washington
Post published their stories based on the secret court order to Verizon,
opinion writers and members of Congress dug up Clapper’s own testimony from
March 12, 2013 before the Senate Select Committee on Intelligence.
In that testimony, Clapper was asked directly by Sen. Ron
Wyden, a Democrat from Oregon: “Does the NSA collect any type of data at all on
millions or hundreds of millions of Americans?” At the time Clapper responded,
“No sir.” Wyden then asked, “they do not?”
Clapper responded, “Not wittingly. There are cases where they could
inadvertently, perhaps collect, but not wittingly.”
At the time, the 215 program was still highly classified.
Clapper later told Andrea Mitchell of NBC News that he believed the question
was a bit like when he had stopped beating his wife and therefore was difficult
to answer with a yes or no. “So I responded in what I thought was the most
truthful or least untruthful manner, by saying, ‘No,’” he told Mitchell.
Many members of Congress have called for Clapper to
resign because of this exchange and his subsequent explanation, alleging that
Clapper lied to Congress and committed perjury.
In the interview with Mitchell, Clapper said he believed
that “collection of a U.S. person’s data would mean taking the books off the
shelf, opening it up and reading it.” The 215 program, in contrast, is the mass
collection of nearly every phone call record made through a U.S.
telecommunications company, but not the contents of those calls themselves.
Sometimes known as telephony metadata, this information is comprised of the
time, duration and number dialed of a phone number. Millions and millions of
people are impacted by it.
At the time, Joel Brenner, a former inspector general for
the NSA, defended Clapper saying Wyden was wrong to ask him a question for
which he knew the answer was classified.
But Clapper told The Daily Beast that he simply
misunderstood Wyden’s question. At the time of the hearing last March, Congress
had just finished consideration of a bill to renew the Foreign Intelligence
Surveillance Act (FISA). Section 702 of that legislation gives the National
Security Agency the authority to collect the electronic communications of non-U.S.
persons. In his question, Wyden asked initially if the United States had
collected “dossiers” on American citizens and referred to an answer to this
question by then NSA director, Keith Alexander.
“I was not even thinking of what he was asking about,
which is of course we now all know as section 215 of the Patriot Act governing
the acquisition and storage of telephony business records metadata,” Clapper
said. “Wasn’t even thinking of that.” The director of national intelligence
said he thought Wyden’s question was actually about section 702 of FISA.
“The allegation about my lying and committing perjury I
think are disproven by my labored amplification when I said, ‘if there is, it’s
inadvertent collection,’ meaning when we’re collecting overseas under section
702, and if we inadvertently collect which we may not know at the time, U.S.
persons data, that’s what I meant by inadvertent. That comment would make
absolutely no sense whatsoever in the context of section 215.”
At the time of the Mitchell interview, the U.S.
government was still in the process of declassifying elements of the FISA 702
program. “There is only one person on the planet who actually knows what I was
thinking,” Clapper said of his testimony from last March. “Not the media, and not
certain members of Congress, only I know what I was thinking.”
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