Intelligence community’s defense of NSA collection programs

August 14, 2013

It’s time for the intelligence community to have its side of the debate over the National Security Agency’s collection programs explained.

Critics of the NSA collection of all U.S. telephone toll records and five-year storage of them under Section 215 of the Patriot Act say it is an unnecessary invasion of privacy. They also worry that the information could be used to harass or track innocent people.

The intelligence community believes, as President Obama put it in his Aug. 9 news conference, that “repeated leaks of classified information have initiated the debate in a very passionate but not always fully informed way.”

Retired Air Force Gen. Michael Hayden, who served as director of the CIA and NSA, put it more bluntly Sunday on CBS’s “Face the Nation.” Asked by host Bob Schieffer whether he thought “the public understands what it is the NSA is doing,” Hayden replied: “No.”

Whose fault is that?

As he has said before, Obama told reporters Friday that he has “directed my national security team to be more transparent.” That very day, the Justice Department released a 23-page “white paper” describing in considerable detail the legal basis for the metadata program.

At the same time, the NSA released a seven-page paper outlining the Section 215 activity, as well as the other program under Section 702, which targets groups outside the United States. With approval of the Foreign Intelligence Surveillance Court, it collects content from the Internet and telephones for foreign intelligence and terrorist information.

Such transparency is useless if the news media do not pass it on to the public. Few, if any, major news outlets carried any of the details from the Justice and NSA papers.

The Justice paper details the toll record search process. It explains how a query of the broad database starts after a previously identified phone number associated with a foreign terrorist group has been detected calling a U.S.-based number.

That so-called first hop brings up five years of calls made to and from that number. Investigators take all those numbers and do the same query for five years. That’s the second hop. From that second hop, they launch a third search of records.

It shows a vast number of phones being searched, which is why some critics are concerned. On the other hand, what the NSA looks for among that data are recurring calls that may lead back to the known terrorist organization, referred to by some analysts as a number “turning back on itself.”

As the NSA document points out, the search helps map communications between terrorists and their associates.

The NSA document notes that of 54 terrorist events discussed publicly, 13 had a U.S. connection, and in 12 of them, the phone metadata played a role.

Intelligence officials say that if the U.S. media do not provide what the government claims are the facts underlying what critics and supporters say, the public cannot understand the issue.

Hayden said directly what many in the intelligence community say privately about the critics.

“They don’t want a little more transparency with regard to the metadata program,” he told Schieffer. “They want the program stopped.”

What also angers many former senior intelligence officials is the complaint by members of Congress and particularly some on the intelligence oversight committees that they were never told about the extent of the phone metadata program.

As the Justice paper notes, the Senate and House Intelligence and Judiciary committees “by December 2008 . . . had received the initial application and primary order authorizing the telephone metadata collection. Thereafter, all pleadings and orders reflecting significant legal developments regarding the program were produced to all four committees.”

Remember “connecting the dots”? That’s what CIA, NSA and FBI personnel heard post-Sept. 11, 2001, as congressional and executive branch investigators over two years interviewed analysts and plowed through records trying to suggest reforms and find fault for failure to anticipate the al-Qaeda attacks.

The roots of today’s programs began as an almost-immediate response to those attacks.

Three days after 9/11, then-NSA director Hayden determined with other agency officials that there was a need for the authority to target U.S. telephone numbers linked to foreign terrorists or their countries of origin.

Intelligence officials later pieced together — and have remembered ever since — that 9/11 hijacker Khalid Almihdhar resided in California in early 2000 and that while some of his conversations with an al-Qaeda safe house in Yemen were picked up, the NSA did not have that U.S. phone number or any indication that he was located in San Diego.

Had the current program existed then, they might have had a chance to disrupt the 9/11 plot.

There are two more issues intelligence officials want noted.

As the Justice Department paper puts it, the NSA programs provide tools “for discovering and thwarting terrorist plots and other national security threats that may not be known to the government at the outset.” The efforts are not like most civil or criminal discovery or investigations, Justice notes, and not originally [emphasis added] aimed at finding people guilty or innocent, or having liability for some past action.

Another point they note is that over the length of these NSA programs, and similar ones that date to the late 1960s, there have been layers of oversight by the NSA, the Justice and Defense departments, Congress and the judiciary.

As Obama put it Friday: “You’re not reading about . . . the government actually abusing these programs and, you know, listening in on people’s phone calls or inappropriately reading people’s e-mails. What you’re hearing about is the prospect that these could be abused.”

For previous Fine Print columns, go to washingtonpost.com/fedpage.

Walter Pincus reports on intelligence, defense and foreign policy for The Washingon Post. He first came to the paper in 1966 and has covered numerous subjects, including nuclear weapons and arms control, politics and congressional investigations. He was among Post reporters awarded the 2002 Pulitzer Prize for national reporting.
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