WASHINGTON — A Democratic chairwoman tried in vain to steer a hearing on cybersecurity today away from questions about the NSA scandal as even members of her own party were determined to keep the spotlight on surveillance programs as the agency director sat at the witness table.
In open session, National Security Agency Director Gen. Keith Alexander tried to reassure the Senate Appropriations Committee that leaker Edward Snowden overstated the capabilities of the surveillance programs and that the NSA was following the letter of the law.
Chairwoman Barbara Mikulski (D-Md.) chided senators in her opening statement to stay on topic. “I understand that these are issues that are very much on the public’s mind and members of the Senate,” she said. “…That’s not today. That’s for another day.”
The first to defy her request was senior Sen. Pat Leahy (D-Vt.), chairman of the Judiciary Committee.
“I’ve had a lot of concern about Section 215 of the Patriot Act, Section 702 of the Foreign Intelligence Surveillance, FISA,” Leahy said. “We’ve had a number of comments and proposals in the Judiciary Committee to improve these provisions. But the intelligence community has told us that we obviously don’t have the ability as simple senators to know anything as well as you do, and so they do not need changes, and told they’re critical to our counterterrorism efforts.”
“I think that there should be sunset provisions and we should look at them periodically, and we should actually debate them in a free and open society.”
Saying he wouldn’t go into “whether he contradicted himself in a couple of answers,” Leahy hinted at Director of National Intelligence James Clapper’s March testimony before the Senate Intelligence Committee in which he told senators that the NSA did “not wittingly” collect data on millions of Americans.
“Has the intelligence community kept track of how many times phone records obtained through section 215 of the Patriot Act were critical to the discovery and disruption of terrorist threats?” the senator asked the NSA chief.
Alexander said he hopes to get those figures within the next week. Leahy noted he couldn’t answer that question for the Intelligence Committee in a briefing yesterday.
“It’s dozens of terrorist events that these have helped prevent, from my perspective,” Alexander said.
“Out of those millions, dozens have been critical?” Leahy said in reference to the volume of phone records being tracked.
“Tomorrow I’ll give as clear as we have, vetted, precisely what we’ve done on each of those,” Alexander said.
Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.), who has called Snowden a “traitor,” scheduled a closed-door briefing in the Senate Visitors Center tomorrow so that all senators can participate.
“And the reason that I’m — I want to get this exactly right, senator, is I want the American people to know that we’re being transparent in here,” Alexander continued, quipping that he didn’t want to “get any kicks from behind me” from staffers feeling rushed to compile the report.
The NSA director said he wants to walk through the Boston Marathon bombings with senators to give the perspective of “what we could not do.”
“What the FBI could have done was to have passed on the information to the Boston authorities. They said they did not. That might have been helpful, too,” Leahy responded.
Clapper said this week that he found it “a little ironic that in — several weeks ago, after the Boston bombings, we were accused of not being sufficiently intrusive.”
“We are supposed — we were — we didn’t — we failed to determine the exact tipping point when the brothers self-radicalized. And then it was, we weren’t intrusive enough,” Clapper said. “I don’t mean to be a smart guy here. It’s just that this is emblematic of the serious debate that goes on in this country between the two poles of security and civil liberties and privacy.”
Sen. Dick Durbin (D-Ill.) thanked Mikulski for bringing cybersecurity “into sharp focus” before promptly veering to the topic of Snowden.
“I trusted, and I still do, that we were hiring the very best, trusting them to not only give us their best in terms of knowledge, but also their loyalty to our country,” Durbin said before rattling off Snowden’s bio as a high school and community college dropout who took a job as a security guard at the NSA in Maryland.
“At age 23, he was stationed in an undercover matter overseas for the CIA, and was given clearance and access to a wide array of classified documents” before leaving two years later for the private sector, Durbin added.
“I’m trying to look at the resume background for this individual who had access to this highly classified information at such a young age, with a limited educational and work experience, part of it as a security guard, and ask you if you’re troubled that he was given that kind of opportunity to be so close to important information that was critical to the security of our nation?” he asked.
“I do have concerns about that over the process, senator. I have grave concerns over that; the access that he had, the process that we did,” Alexander replied. “…I would point out that in the I.T. arena, in the cyber arena, some of these folks have tremendous skills to operate networks. That was his job for the most part, from the 2009-’10, as an I.T. system administrator within those networks. He had great skills in that area.”
Durbin noted that Section 215 can be used to obtain “any tangible thing — that could include medical records, Internet search records, tax records, credit card records.”
“Last year, the government filed 212 Section 215 orders. That’s an increase from 21 such orders in 2009. So clearly, this authority is being used for something more than phone records,” the majority whip said.
“All we use this for today is the business records, FISA,” Alexander said.
“If you have a suspect, that to me is clear. I want you to go after that person,” Durbin said. “What I’m concerned about is the reach beyond that that affects innocent people.”
“So we agree at least on that part,” said the NSA director.
Sen. Mike Johanns (R-Neb.) asked if the searches go beyond telephone records. “Could you check and see what that person is Googling? Could you check and see who that person is e-mailing?” he asked
“Yes, you could,” Alexander responded. “I mean, you can get a court order to do that.”
Johanns said lawmakers have “got to get some information out to the public because right now we’re all getting bombarded with questions that many of us at the rank-and-file level in the Senate cannot answer.”
“I am not the chair of the Intelligence Committee. I’m not the ranking member. I don’t serve on the committee. And the impression has been created that people parked in our office are giving us daily briefings on this or monthly briefings, and that’s not been the case,” he said.
Sen. Jeff Merkley (D-Ore.), who accused the administration of not following the law after the leaks broke, said the NSA needs to show “reasonable grounds that the tangible things sought are relevant to an authorized investigation.”
“How did we get from the reasonable grounds, relevant, authorized investigation, statement of facts, to all phone records, all the time, all locations? How do you make that transition and how has the standard of the law been met?” he asked. “Here I have my Verizon phone, my cell phone, what authorized investigation gave you the grounds for acquiring my cell phone data?”
Alexander said he needed to pull in the Department of Justice for an explanation “because it is a complex area.”
“And so I do think what we should do as part of perhaps the closed hearing tomorrow, walk through that with the intent of taking what you’ve asked and seeing if we can get it declassified and out to the American people so they see exactly how we do it. Because I do think that should be answered,” he said.
“Do you support the standards of law, the interpretations of the FISA Court, of the plain language to be set before the American people so we can have this debate?” Merkley continued.
“I think that makes sense. I’m not the only decision-maker in the administration on this process. So, there are two issues. I’m not equivocating. I just want to make sure that I put this expectation exactly right, and that is I don’t want to jeopardize the security of Americans by making a mistake and saying, ‘Yes, we’re going to do all that,'” Alexander said. “But the intent is to get the transparency there.”
Sen. Susan Collins (R-Maine) asked Alexander about Snowden’s claim that he or others at the NSA could tap into virtually any American’s phone calls or e-mails.
“False. I know of no way to do that,” said the NSA chief.
“I do think what we’re doing does protect American civil liberties and privacy,” Alexander said later. “The issue is, to date, we’ve not been able to explain it, because it’s classified so that issue is something that we’re wrestling with. How do we explain this and still keep this nation secure?”
“We have great people working under extremely difficult conditions to ensure the security of this nation and protect our civil liberties and privacy. They do a great job. Actually, I would like the American people to know that, because they would be tremendously proud of the men and women of NSA who have done this for us for the last decade. It is a great story.”