Critics of government surveillance aren’t backing off despite recent developments

Walter Pincus
Reporter February 10

Recent events should help the public back away from some of its furor over last year’s disclosures of National Security Agency activities and the Justice Department’s use of subpoenas to get journalists’ phone and e-mail records.

Right now, though, it doesn’t seem that’s going to happen.

The Washington Post first reported Friday that the NSA’s collection of U.S. telephone toll records covers about 20 to 30 percent of such call records because of the drop in the use of land lines and the NSA’s inability to collect metadata on cellphone or Internet calls.

Under the NSA’s “215” program — some details of which were in documents leaked by former NSA contractor Edward Snowden — the agency since 2006 has collected and held for five years telephone company toll records on all U.S. land-line phones, including the calling number, the number called and the length of the call.

Besides the NSA’s partial success, reforms are underway in limiting access, but critics of the 215 program still want it ended. For some it remains a threat to civil liberties. Other critics simply see the program as ineffective.

Even so, there are other developments that should bring things from a boil to a simmer:

●Last week, intelligence officials tried to explain during a House hearing Snowden’s damage to national security, while acknowledging that they still don’t know all of what he took and distributed to documentary producer Laura Poitras, journalists Glenn Greenwald and Barton Gellman, and possibly others.

●On Friday, former State Department contractor Stephen J. Kim pleaded guilty to providing information to a Fox News reporter in 2009 from an intelligence report about North Korea marked “Top Secret/
Sensitive Compartmented Information” — meaning it contained electronic intercept intelligence.

●In September, former FBI bomb technician Donald Sachtleben agreed to plead guilty to providing classified information to the Associated Press about what turned out to be an April 2012 CIA effort to infiltrate a Yemen-based terrorist bomb operation. Justice’s seizure of AP phone records last year provided key evidence that Sachtleben was the source of the news agency’s May 7, 2012, article on the operation.

That made Kim’s the second guilty plea in leak cases in which Justice obtained journalists’ telephone records and e-mails to win indictments.

News coverage of Kim’s plea mentioned the classified nature of the leak but focused more on new Justice Department rules to protect journalists’ records rather than the key role those records played in solving the case.

Meanwhile, the Snowden drama continues to unfold.

Despite news media claims that the Obama administration’s subpoenas would chill leaks, Snowden’s most massive distribution of classified documents was already in motion and became public in June.

Snowden continues to talk expansively about NSA operations, as he did Jan. 26 during an interview from Russia carried by German public broadcaster ARD TV.

His German audience was already outraged by the disclosure that the NSA had collected data from Chancellor Angela Merkel’s phone.

In the interview, regarding data that the NSA collects, Snowden said: “Every time you pick up the phone, dial a number, write an e-mail, make a purchase, travel on the bus carrying a cellphone, swipe a card somewhere, you leave a trace and the government has decided that it’s a good idea to collect it all, everything, even if you’ve never been suspected of any crime.”

His broad charge — which goes far beyond the NSA’s activities — feeds into paranoia.

Asked whether the NSA spies on German corporations such as Siemens, Snowden first replied, “I don’t want to preempt the editorial decisions of journalists,” implying that some of the material he distributed deals with that subject.

Then he said: “There’s no question that the U.S. is engaged in economic spying. If there’s information at Siemens that they think would be beneficial to the national interest, not national security of the United States, they’ll go after that information and they’ll take it.”

Last Tuesday, while appearing before the House Intelligence Committee, James R. Clapper Jr., director of national intelligence, conceded that little is known about what Snowden downloaded, though the probe showed he had access to about 1.7 million documents.

Army Lt. Gen. Michael T. Flynn, head of the Defense Intelligence Agency, told the panel that his task force investigating Snowden acted as though “everything that he touched, we assume that he took, stole. And so we assume the worst case.”

Clapper said “we don’t know” what Snowden took “and what he shared with either the media and with whom in the media or with a foreign national entity.” What is known for sure comes only from “the 200 or so articles that have been published . . . which do give us some insight into what was taken.”

Snowden claims that he disclosed the information because of his concern about the NSA’s domestic surveillance, but Clapper speculated that “probably less than 10 percent [of what he is believed to have downloaded] has to do with domestic surveillance.”

The bulk had to do with Defense Department tactical and strategic operations, such as dealing with improvised explosive devices in places such as Afghanistan, Flynn said.

The Snowden story is far from over, and intelligence capabilities that cost billions of dollars are at risk, along with the potential for new stories exposing the vulnerabilities of the U.S. military and intelligence community — which ultimately means the American people.

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

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