POLITICS

NSA Surveillance Largely Defended By Congress In Rare Public Hearing

06/18/2013 04:51 pm ET | Updated Jun 18, 2013

WASHINGTON -- Lawmakers and intelligence officials mounted a vigorous and detailed defense of the National Security Agency's Internet and phone data sweeps on Tuesday, saying the counterterrorism programs were vital to protecting America and subject to multiple layers of oversight.

The House Intelligence Committee's public hearing featured leaders from the office of the director of national intelligence, the NSA, the FBI and the Department of Justice, all called to respond to revelations from leaker Edward Snowden that the United States collects records on the phone calls of U.S. citizens and sweeps extensive data from the Internet.

The remarkable array of spymasters in an open session highlighted how seriously the intelligence officials believe the leaks have hurt U.S. security, but the hearing also raised questions about whether counterterrorism officials were doing all they could to protect Americans' constitutional rights.

Officials said over and over that the damage done was significant, calling it "irreversible" and contending that terrorists had absorbed the details about NSA efforts and would now seek to work around them. Most members of the committee seemed to agree that the important damage here was not to citizens' rights, but to their safety.

"It is at times like these where our enemies within become almost as damaging as our enemies on the outside," said committee Chairman Mike Rogers (R-Mich.).

"We are here today because of the brazen disclosure of critical classified information that keeps our country safe," said Rep. Dutch Ruppersberger (D-Md.), the top Democrat on the committee. "Its widespread leak by a 29-year-old American systems administrator has put our country and our allies at danger by giving the terrorists a really good look at the playbook that we use to protect our country."

The two programs at the heart of Snowden's disclosures arise out of Section 215 of the Patriot Act, which allows the NSA to capture and keep for five years records on all phone calls, and Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes investigators to gather data from the Internet on non-U.S. citizens under the so-called PRISM program.

Gen. Keith Alexander, the Defense Department official who runs the NSA, said that the programs have helped stop more than 50 terror plots around the world and that Section 702 was important to 90 percent of those efforts. Section 215 also played an important role in uncovering many plots, he said.

FBI Deputy Director Sean Joyce elaborated on several of the terrorists' schemes, including the New York subway bombing plan of Najibullah Zazi. "In the fall of 2009, NSA, using 702 authority intercepted an email from a terrorist located in Pakistan," said Joyce, adding that email then led to Zazi in Denver and sparked the investigation that brought him down.

"Without the 702 tool, we would not have identified Najibullah Zazi," Joyce told Rep. Mike Thompson (D-Calif.).

However, Joyce's testimony raised a new question. According to court proceedings flagged by bloggers last week, British authorities first discovered the email account that was key to the case in their own investigation. It was not immediately clear why U.S. authorities believed they needed the sweeping PRISM program to track Zazi, rather than regular warrants.

Officials also pointed to the arrest of David Headley in connection with the Mumbai bombings and noted two new cases in which individuals in the U.S. funded terrorists. One involved a man named Khalid Ouazanni in Kansas City, Mo. The other targeted a man named Basaaly Saeed Moalin and three others in San Diego.

Despite public concern about the ability of the government to hold data on billions of phone calls and untold amounts of Internet data, the officials insisted that all the activity is carefully monitored internally, that it's authorized by law and that it's overseen by the Foreign Intelligence Surveillance Court and Congress. They said the NSA cannot listen in on Americans' phone calls, track their locations or spy on their Internet conversations under either program.

They also argued that the actual surveillance is highly targeted and that in 2012, for instance, fewer than 300 phone numbers were brought to the Foreign Intelligence Surveillance Court to be flagged for scrutiny. They did admit, however, that once a number is approved by judges for surveillance, the FBI does not have to go back for new approval of new "queries" related to that number. The officials said that all those related searches are tracked and audited and regularly reported on to the court, and that if there are ever any lapses or problems, those are reported to the court as well.

But Rep. Adam Schiff (D-Calif.) raised some significant issues in his questioning. He got Deputy Attorney General James Cole to admit that investigators do not tell the court about the specifics of the related searches, providing only aggregate numbers and problems encountered.

Schiff suggested that the court should review those additional searches. He also raised the question of whether the authorities would declassify the court opinions that justify the secret surveillance so that the public can understand what's being done in its name. The officials promised only to try.

Alexander responded, "We're going to look at that," but "it will take some time ... The concern is speed in crisis. How do we do this?"

Schiff noted that he would be introducing a bill, similar to one in the Senate, to declassify the court's opinions. The congressman also suggested that perhaps the phone data collection program should be changed so that the mass of data is not held by the government.

"I think that the American people may be much more comfortable with the telecommunications companies retaining those business records, that metadata, than the government acquiring it," Schiff said.

Other Schiff, few members of Congress indicated much worry about that program. Rep. Jim Himes (D-Conn.) did say the phone record collections "quite frankly trouble me. They trouble me because of the breadth and the scope of the information collection. They trouble me because I think this is historically unprecedented in the extent of the data that is being collected potentially on all American citizens."

Himes wanted to know "where you draw the line" on the type of data collected and if, for instance, the government could track him by grabbing video surveillance from public cameras. He was not immediately answered, but officials later told Rep. Michele Bachmann (R-Minn.) that the government does not store data that would allow such a feat.

Himes also wondered what stops a rogue employee from simply looking up the calls a specific person was making. Alexander said that only 22 people have the authority to ask the court for approval to gather that kind of data, and if they gathered it without approval, they would leave a trail and be caught.

The officials' bottom line was not that the Snowden leaks had revealed any violation of American rights, but that he may have helped enemies of the United States.

"I have concerns that the intentional and irresponsible release of classified information will have a long and irreversible impact on our nation's security and on that of our allies," said Alexander. "This is significant. I want to emphasize that the foreign intelligence programs that we're talking about are the best counterterrorism tools that we have to go after these guys. We can't lose those capabilities."

The NSA later released briefing papers explaining the protections built into both the phone records program under the Patriot Act and the PRISM program under FISA.

Michael McAuliff covers Congress and politics for The Huffington Post. Talk to him on Facebook.

This story has been updated to note the NSA's release of briefing papers on its surveillance programs.

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