Top intelligence officials defended National Security Agency (NSA) programs and spying on American allies in a House Intelligence Committee hearing last week afternoon, but also said they were willing to look into possible changes to practices to help ease the public’s concern that the NSA has gone too far.
Director of National Intelligence James Clapper and NSA Director General Keith Alexander testified before the committee on possible changes to the Foreign Intelligence Surveillance Act (FISA). The act set up the Foreign Intelligence Surveillance Court, which became the agency that reviewed requests by government agencies for permission to wiretap phones and conduct other types of covert communications surveillance.
“We only spy for valid foreign intelligence purposes as authorized by law with multiple layers of oversight to be sure we don’t abuse our authorities,” Clapper said.
With regard to the recent revelations about spying on leaders of friendly nations like Germany and France, Clapper said that knowing what other leaders’ intentions are, whether they be considered a foe or an ally, is important to keeping American lives safe and securing the nation’s interests across the globe.
Clapper explained that in his 50-year-longcareer in intelligence, collecting and analyzing leadership intentions has been part of the game. “[I]t’s critical for us to know where countries are coming from, what they’re policies are, how that would impact us across a whole range of issues,” he explained. “And it isn’t just leaders themselves, it’s what goes on around them and the policies that they convey to their governments.”
Clapper neither confirmed nor denied whether the NSA was currently or had previously specifically monitored German Chancellor Angela Merkel’s phone and he also did not specify whether the White House was aware of the agency’s activities. There was division within the committee itself about whether or not members had been privy to information about this type of eavesdropping.
Clapper also asserted that America’s allies have spied and continue to spy on U.S. leaders.
Moreover, Clapper said, “we believe that we have been lawful and that the rigorous oversight we’ve operated under has been effective.” Alexander described the NSA oversight process to the committee, referencing the committee itself, the Department of Defense, and the FISA courts as some of the entities ensuring that the NSA acts within the law. “Everything we do on this program (FISA) is audited 100 percent,” Alexander added.
Despite these assertions, Congress is considering making changes to FISA to address concerns that have been highlighted in the press as the result of leaks of classified information from former NSA contractor Edward Snowden.
One authority that has come under scrutiny is FISA Section 215, which has been interpreted as allowing the NSA to collect large databases of telephone call metadata from telecom providers, and to store that information. Congress is considering amending the law to stop the agency from collecting data in bulk and to move it back “towards a system like the one used in the criminal prosecution system in which the government subpoenas [only] individual call data records—phone numbers, no content—to be used for link analysis,”, said Committee Ranking Member U.S. Representative C.A. Dutch Ruppersberger (D-MD).
Alexander and Clapper both raised concerns, however, that making this move would present challenges as it would take more time for the NSA to get the information it needed, which could hinder security operations and endanger lives.
If the agencies could not obtain and store bulk data, Congress would also need to pass new legislation to require companies to hold phone records for more than the current requirement of 18 months, according to Justice Department Deputy Attorney General James Cole, who also testified at the hearing. This would be essential as Alexander said the NSA needs at least three years’ worth of phone record data to be able to analyze and connect the dots on terrorism cases.
Congress is also considering creating an inspector general of the NSA who would be appointed by the president and confirmed by the Senate to provide an extra, independent check on intelligence activities. Alexander said he didn’t think the new position would “hurt” the NSA and that it would help create a level of transparency about the agency’s actions, which are otherwise not disclosed to the public.
Other possible changes discussed at the hearing were allowing all members of Congress to view classified reporting about the FISA programs, declassification of FISA Court cases, and the creation of a privacy advocate who could present an alternative position (from that put forth by the requesting agency) on significant interpretations of the FISA when requests come before the FISA Court. Currently, the FISA Court does not operate under an adversarial system allowing a legal representative to challenge the government’s position before judges, a fact highlighted at the hearing by U.S. Representative Terri Sewell (D-AL).
Cole responded that on routine matters, such as obtaining a warrant to look through metadata content, such a system would “disrupt” the work of the court and the intelligence community because it would elevate the standard of proof necessary to obtain a warrant. But, he said, the process could be beneficial when it came to interpreting the law. The FISA Court “interprets the law in novel and significant ways and in that regard, we have in a couple of different settings and hearings. There are times when the court may well benefit from appointing an amicus who would come in and give other viewpoints and those could be beneficial in helping the court find its way through novel and significant and difficult areas of the law,” he explained.
Those testifying agreed that the NSA needs to win back the support and confidence of the American people. But Alexander said it was also crucial for the NSA to defend and maintain its programs to avoid raising the risk of future attacks on America.