Will the NSA have to curtail some intelligence tools?

December 23, 2013

As the drip, drip, drip of stories generated by documents leaked by former National Security Agency contractor Edward Snowden continues, the intelligence community and particularly the NSA may be forced to modify some tools that officials claim have proved effective, not just in fighting terrorism but in gathering all sorts of intelligence.

That the NSA is losing what’s become a public relations battle was illustrated last week in the combination of U.S. District Judge Richard J. Leon deciding that NSA’s domestic collection of telephone toll records is likely unconstitutional, and the President’s Review Group on Intelligence and Communications Technologies recommending changes that could directly impact NSA programs.

Twelve years after the attacks of Sept. 11, 2001, the public’s fear of terrorists striking the U.S. homeland has almost vanished. With a handful of attempts thwarted and the Snowden documents generating criticism of a wide range of NSA collection programs, intelligence officials are among the few who remember complaints in the wake of the World Trade Center and Pentagon attacks that they hadn’t “connected the dots.”

The April 15 Boston Marathon bombing brought back memories of that criticism when the FBI was questioned in Congress for not thoroughly pursuing Russian warnings about Tamerlan Tsarnaev, one of the alleged perpetrators.

The NSA’s domestic collection of telephone toll records, a program created in the immediate aftermath of Sept. 11, has come under particular scrutiny. Its defenders say it can provide “dots” of information that could lead to unraveling a plot.

Today, however, this metadata program is being characterized as a bigger potential danger to the public’s privacy than as a potential asset in preventing another terrorist plot.

I write “potential danger” because despite Snowden’s apparent downloading of an estimated 1.5 million documents, stories so far generated by his actions have not disclosed any illegal or improper use of information in the so-called 215 metadata program, under which the NSA collects and stores all U.S. telephone toll records for five years.

There has been some actual misuse of intercepts, but they took place overseas, under a different NSA program. In a dozen instances, discovered in the past by the NSA’s own oversight program and recently disclosed in September by the agency itself, agency personnel or contractors used access to intercepts to check up on wives or girl friends.

There is no evidence offered that the 215 metadata program has been misused.

Former National Intelligence director Dennis Blair, appearing Sunday on CNN, asked rhetorically “whether actual harm was done to an innocent American . . . by the program. Has anybody lost a job, been harassed by the FBI, been barred from doing something as a result of the program, any innocent American? And the answer is no, none of those have come to light.”

The presidential review panel reported it “found no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity. This is of central importance, because one of the greatest dangers of government surveillance is the potential to use what is learned to undermine democratic governance.”

Sen. Mark Udall (D-Colo.), a leading critic of the program, said Sunday on ABC, “There has been no abuse,” but also added, “the potential for abuse is always there, and Americans have always erred on the side of protecting our privacy.”

So the question is how to protect that privacy while also providing the security the public also demands.

Last June, then-FBI Director Robert Mueller said if NSA’s 215 metadata had been available before Sept. 11, the bureau might have been able to connect an al-Qaeda-linked Yemen number to hijacker Khalid al-Mihdhar, who was in the United States. In October, NSA Director Gen. Keith Alexander gave similar testimony to Congress.

Critics now focus on two statements from last week that question the usefulness of the 215 program. Leon said in his opinion, “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack or otherwise aided the government in achieving any objective that was time-sensitive in nature.” He points out in a footnote, however, that “the government could have presented classified evidence in camera but it chose not to do so.”

The president’s review board said its study “suggests that the information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”

On CBS’s “Face the Nation” on Sunday, former CIA deputy director Michael Morell, one of five members of the review board, sought to clarify what those words meant. He said the group saw value in keeping the program going, noting it is important that “out of the couple hundred times a year that NSA queries this database . . . there are a dozen, 15 times a year where they have tipped information to the FBI.”

The president’s panel recommended two changes in how the program operates. The first was to keep the massive phone toll records with the telecommunication companies or some nongovernmental body rather than the NSA.

The second change was in how NSA queries the phone metadata. Today, NSA gets blanket authority to pursue foreign calls to U.S. phones if it relates to one of a specific list of foreign terrorist organizations pre-approved by the Foreign Intelligence Surveillance Court. Thereafter, it is up to a small group of NSA officials to determine when any single foreign number qualifies.

The review board said under its proposal, “NSA should have to get a court order for every individual time they want to query this data [based on a foreign phone call to the U.S.], not operate under a blanket court order,” Morell said. It could lead to four days of delay to the process, he suggested. Leon also focused on NSA “querying and analyzing it [the telephone metadata] without prior judicial approval.”

With that kind of backing, this may be one recommendation that can gain votes in Congress not just from critics of the program, but also from some of its supporters.

For previous 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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