Chief counsel for privacy, Executive Office of the President at the Office of Management and Budget (1999-2001)
There's still mysteries here. There's one program that the president and the attorney general have announced publicly, but there's very strong reports about other programs that are happening, too. ...
What are you talking about? There's one program; ... it's the program the president describes. What else have you got in mind?
Well, there's two other revelations that we've had -- three programs to keep in mind. Program number two has to do with a whistleblower for AT&T who says that some of the big phone switches where huge amounts of communications go in and out between the U.S. and overseas, there's a direct feed to the government. That's not point-to-point for people linked to Al Qaeda; that's anybody who's sending e-mails or [making] phone calls overseas.
[The] next report was the USA Today story in the spring of 2006 which said that for 40 or 50 million Americans -- that's not all Al Qaeda -- 40 or 50 million Americans, [their] detailed phone records have been turned over to the government by the big phone companies. So now we have huge numbers of ordinary communications being intercepted, huge numbers of ordinary Americans' phone records being taken, and no legal structure in place to do that. That's much, much broader than a few people linked to Al Qaeda. ...
So what do you think the government's doing? Is the NSA trying to find out who are suspicious characters, suspicious enough they can put some things together to actually go get a warrant?
... [In] law enforcement you have to prove beyond a reasonable doubt; you need really strong proof. But for intelligence maybe you just flag somebody you never realize you had to watch, and then you flag that he had a funny conversation with someone else you're watching, and gradually you start to see something. That's the hope in the intelligence world. And so the intelligence people want the huge volume of information, hoping somehow they can maybe find a lead so that one of those attacks gets stopped before it happens.
Why haven't they done this through FISA [the Foreign Intelligence Surveillance Act]? ...
The hard thing through FISA is, you get to wiretap people where there is probable cause that they're an agent of a foreign power. You have to already link them to a terrorist group or link them to a foreign country, and then you get the FISA power. The hard issue under FISA is, what if you just have a little bit of a clue? Can you start surveillance on them in the United States? …
[Former NSA director] Gen. [Michael] Hayden, the attorney general [Alberto Gonzalez], they have said: "We're not doing a drift net. We're not doing data mining." Sounds like a denial of what you're talking about.
What they've said repeatedly is that "We're not doing the drift net in this program." But it might be program number two or program number three.
This program being what, the president's program?
Because they were talking about the president's program, and then the other things we're worried about tend to be happening in these other programs they haven't admitted to. …
So you're suggesting that it sounds like a denial, but it doesn't cover the waterfront.
He's a former judge. He's a smart lawyer. The attorney general was speaking very carefully and under oath. But I think there could be lots of room after you read his testimony for other programs to be doing really unprecedented things. ...
Attorney, national security division, FBI (1999-2002)
If the scenario the president describes -- you have Al Qaeda on one end of the phone call and you have a person in the United States on the other end -- you have on the one hand an Al Qaeda person, an agent of a foreign power, a person [who] absolutely meets the FISA definitions for surveillance, and you could intercept that call. … So I have the same issue. If that is the scenario, and if you know that, then you have met the standard for the FISA.
So this to me raises the question: Is that really the scenario? What I think is the most, to my mind, most likely answer is, well, this is what we are aiming at, but we may not have quite that level of certainty. In other words, we may not exactly know that the person overseas is Al Qaeda. We may have some suspicion, or we may not be clear yet, or maybe it's not a person over there; maybe it's a phone number over there. And so we want to look at anyone from the United States who is in contact with that phone number. Maybe we have a pattern of behavior without specific individuals, and we just want to look at when a communication meets this template, then we want to be able to look into [it]. I mean, there had to have been something that --
Something more, something that wasn't as simple as that explanation, because that explanation you could take to the FISA court. And I should say here, too, FISA, as I said, only covers interceptions inside the United States. ... [I]f you wanted to tap the person's phone overseas or somehow intercept it in the stream of communications at a point outside the United States, you wouldn't even be under FISA authority. That's the sort of thing that NSA and our intelligence agencies do all the time. That's executive authority surveillance. …
Assistant general counsel, CIA (1989-1995); deputy staff director, Senate Intelligence Committee (1995-1997)
I'm still not sure, by any means, what it is that this program activity or activities encompass. I think in some cases there's been some confusion. You read analysis in newspaper articles and you listen to experts, and they start talking about data mining. Are we talking about something that is data mining? Are we talking about actually listening to conversations, or are we talking about listening for key words? Are we talking about listening for tone of voice? For languages? What kind of activity are we talking about?
And why is that important? … Because each of those activities I think represents a slightly different privacy implication, and that's important in undertaking a Fourth Amendment analysis. How concerned do we need to be, and what sorts of safeguards would we want to see built in? …
It's not at all inconceivable to me that the Foreign Intelligence Surveillance Act may need to be updated. ...
I realize that you don't know exactly what's going on. ... What's your intelligent surmise? Is it just what the president says -- the call from Al Qaeda to somebody in the United States -- or is there a broader look at the traffic on the Internet or the traffic in the phones to try to find people, to filter out who the bad guys are?
… There are clear indications that there is a broader data analysis being undertaken, using databases that the government has access to, which it is using to try to find anomalies and try to find terrorist activity. What we don't have is a clear sense of the legal framework under which this activity is taking place.