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NSA Secretly Collected Millions of Phone Records in Counterterrorism Effort

June 6, 2013 at 12:00 AM EST
The National Security Agency has secretly collected data about millions of domestic and international calls by Verizon customers. Jeffrey Brown gets debate on the privacy and civil liberty concerns from Kate Martin of the Center for National Security Studies and former NSA official Col. Cedric Leighton.
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JEFFREY BROWN: It’s highly secret and far-reaching, and it’s been going on for years. It is an enormous database of calls amassed by the National Security Agency and made public today.

The revelation came first in the Guardian newspaper in London. It reported the Foreign Intelligence Surveillance Court has authorized the NSA to monitor millions of domestic and international calls by Verizon customers.

In Washington, Attorney General Eric Holder declined to go into detail at a Senate hearing.

ATTORNEY GENERAL ERIC HOLDER, United States: Without saying anything specific, I will say this, that with regard to — that members of Congress have been fully briefed as these issues, matters have been under way.

JEFFREY BROWN: Later, a White House spokesman defended the program and he said the government is not allowed to listen in on the phone calls. Instead, under the court order, the NSA logs what’s known as metadata, call location, duration, and numbers dialed, but not the subscribers’ identities or the content of a call.

For the most part, lawmakers from both parties seemed untroubled today by the agency’s activities.

Republican Sen. Lindsey Graham of South Carolina spoke at the Holder hearing.

SEN. LINDSEY GRAHAM, R-S.C.: I’m a Verizon customer. It doesn’t bother me one bit for the national security administration to have my phone number, because what they’re trying to do is find out what terrorist groups we know about and individuals and who the hell they’re calling.

JEFFREY BROWN: Other senators confirmed the NSA has been building a massive database of calls to look for suspicious patterns since 2006, under the Patriot Act.

Democrat Dianne Feinstein, chairing the Senate Intelligence Committee, said the records are collected, but not reviewed unless there’s a good reason.

SEN. DIANNE FEINSTEIN, D-Calif.: If through another way, information comes to the FBI that there is reasonable suspicion that a terrorist act, conspiracy, planning, carrying out is going on, they can access those records. The records are there to access.

JEFFREY BROWN: But at least one senator, Democrat Ron Wyden of Oregon, raised a concern in a statement, saying: “I believe that when law-abiding citizens call their friends, who they call, when they call and where they call from is private information.

It was first reported in 2006 that the Bush administration was wiretapping e-mails and phone calls worldwide in the hunt for terror suspects. At the time, then-Sen. Obama said it was a — quote — “slippery slope.”

Today, House Speaker John Boehner said today it’s now up to President Obama to explain how critical the program is.

REP. JOHN BOEHNER, R-Ohio: It’s important for president to outline to the American people why the tools that he has available to him are critical to the threats that we may — that we may have.

JEFFREY BROWN: For their part, Verizon and other major carriers declined to comment today.

And late today, The Washington Post reported the NSA and the FBI are tapping directly into servers for nine of the country’s leading Internet companies, gathering audio, video, photographs, e-mails, and other personal information under a highly classified program.

And we pick up the debate now in all of this with Kate Martin, the director of the Center for National Security Studies, a civil liberties advocacy group. And Col. Cedric Leighton had a 26-year career in the Air Force and served as deputy training director for the National Security Agency in 2009 and 2010. He now has his own consulting firm.

Welcome to both of you.

COL. CEDRIC LEIGHTON, U.S. Air Force: Thank you.

JEFFREY BROWN: Kate Martin, let me start with you.

One reaction today we heard was, what’s new? What’s the big deal? This is a routine renewal of an order. You had a different reaction?

KATE MARTIN, Director, Center for National Security Studies: Well, I was astounded, first of all, to learn for the first time that the government thinks the law allows this, and even more astounded to learn that they were doing it.

We have engaged in debates in this country about changes to this law for the last 12 years. The civil liberties community has continually raised concerns about bulk collection, and basically been told that it’s not a problem. And it turns out that the bulk collection that’s going on appears to be beyond our wildest fears.

JEFFREY BROWN: All right, let me ask Cedric Leighton.

This bulk collection, metadata, explain it a little bit more and why you think it’s OK and not an invasion of privacy.

CEDRIC LEIGHTON: It depends on how it’s done, actually, Jeff.

But the basic idea about bulk collection is that you take all of the data that you can possibly gather and then look for the indicators that you are — you need. So, for example, let’s say you want to find somebody who is connected with somebody in Chechnya because of the Boston bombing. We will use that as an example.

So, you look at how their phone calls work. You look at how they talk to people, where they talk to them, when they talk to them, and which people they talk to. So, once you have that connection, let’s say, to Chechnya, then you also determine how that person interfaces with people in the United States, and if people in the United States are part of a network, a terrorist network, or if they’re just innocent people that are part of a friend’s network that has no knowledge of any other efforts that are going on.

JEFFREY BROWN: Well, in fact, Kate Martin, the House Intelligence Committee chairman, Mike Rogers, today said that — and I want to just quote — that this NSA program helped stop a significant terror attack in the U.S. in the last few years.

Now, he didn’t give any more information than that. That’s all we know.

KATE MARTIN: Right. And I think that that’s not the point at the moment.

The question, of course, is whether or not a lesser intrusive program would also stop terrorist attacks. We all want that to happen. And the first question is whether or not the government’s going to come clean, first of all, about whether it thinks it has the legal power to do, and, second of all, what it’s doing.

You know, so they have basically been keeping this a secret, and instead of, you know, saying, oh, gosh, maybe we need to have a public debate about the contours of the program, whether or not the program’s really needed, et cetera, they have jumped to, oh, well the program’s been useful.

But that’s not the criteria. The criteria is whether or not the program’s lawful. And it’s lawful only, in my judgment, if the Congress and the American people have understood that the law allows it. And Congress, apparently, thinks that they understood it. They forgot to tell us.

JEFFREY BROWN: Well, let me – Col. Leighton, one of the questions here is sort of how clear the law is, right? I mean, in deciding when the collection of data is allowed, how well defined is this idea of relevancy to important security data? Is that clear?

CEDRIC LEIGHTON: Well, it’s — you know, when you look at how the law is written, it is not exactly explicitly clear.

So, for example, Kate and I can have a debate on the issue, on the merits of the law, but the issue for an intelligence agency is, how do I, as an intelligence agency, look at the data that is available to me and what kind of data should be made available to me?

So the intelligence agencies look to the executive leadership in the White House, and then the legislative leadership in Congress, and in these particular cases, Congress has been briefed on the program, on the nature of the program, and, to some degree, on the extent of the program.

JEFFREY BROWN: But they’re looking to a judge, ultimately, who has to make the — has the opinion that this is, in fact, relevant enough.

CEDRIC LEIGHTON: That’s right. And the judge has to make the determination. In the case of the FISA courts, the Foreign Intelligence Surveillance courts, they are designed to work in a classified arena, and they take the arguments from NSA or another intelligence agency and say, OK, is this relevant to national security? Is there a clear and present danger to us right now that requires this kind of action?

If there is not, then they should reject the motion. If there is, then they accept it, and that’s how they operate.

JEFFREY BROWN: Well, so, Kate, Kate Martin, respond to that. Where is the weak link, if you think there is one?

KATE MARTIN: Well, I think the first question that we don’t know is, what is the government doing? Does it consider that it’s relevant to collect not only all of our metadata on all of our phone calls and our Internet communications, but also other kinds of records, bank records, credit card records?

In the government’s views, those aren’t protected by the Fourth Amendment. So it has this giant database, which I vaguely heard today that maybe before they — they have some more procedures, right, about how they use that database. That’s all secret. So we don’t know what it is that they’re collecting, the breadth of what they’re collecting, nor do we know what the rules are about using it.

And, you know, my view of the Constitution is that the basic purpose of the Fourth Amendment was to prevent general searches, which meant that the government goes into your house, takes everything, and looks through it to see if there’s evidence of a crime or terrorism.

And I worry that what it seems like, but we need to know because we don’t know, and we have been denied the information — that what the government’s approach at the moment is, well, we will construct this enormous database on all Americans’ activities.

JEFFREY BROWN: Well, let me get — let me ask Cedric Leighton to respond to that.

Is there a way for the government to be clearer about what it’s collecting and still do its work?

CEDRIC LEIGHTON: I think so, and I think we have to be very careful with it.

I think Kate brought up an interesting point, an excellent point, in that they have not been clear about how they handled the data. And some of the issues surrounding it have to this point been classified. But there are — think — I think there are ways to say, OK, this is the data that we’re collecting in general terms, and our way of handling that data is as follows.

For example, there are rules that govern how we deal with data from U.S. persons. The NSA has some very specific rules, many of which are classified. But the gist of them is that no one can gather data on U.S. persons without the express permission of a court. And that is part of that. That’s the beginning of this approach where we have to be very careful with how we make this work.

JEFFREY BROWN: And just very briefly, now we get The Washington Post reports about the Internet. Would it surprise to you find that other phone companies may have been involved with this as well?

CEDRIC LEIGHTON: Oh, not at all. I think it’s logical to say …

JEFFREY BROWN: You’re expecting that we will hear more?

CEDRIC LEIGHTON: Yes, I definitely do.

KATE MARTIN: And just to be clear, the express permission of a court is not equal to a Fourth Amendment warrant. There was no Fourth Amendment warrant-type order in this case.

JEFFREY BROWN: All right.

KATE MARTIN: And it’s really disturbing that we have to learn about this through a leaked document, rather …

JEFFREY BROWN: OK. We will continue to follow this.

Kate Martin and Cedric Leighton, thank you both very much.

KATE MARTIN: Thank you.

CEDRIC LEIGHTON: Thank you so much.