NSA Tries to Assure Congress, Public of Tactics with Document Dump

Sen. Chuck Grassley (R-Iowa), the committee’s ranking member, was less forceful in his assessment than Leahy, noting that lawmakers “must make sure we don’t repeat the mistakes of the past.”

Grassley said laws enacted prior to 9/11 that constructed a wall between the intelligence community and law enforcement contributed to the tragedy. The key, he said, is “striking a proper balance.”

“Investigating threats to our national security gives rise to a tension between the protection of citizen’s privacy rights and the government’s legitimate national security interests,” he said.

NSA Deputy Director John Inglis told the panel that the Snowden leak “will have a long-term detrimental impact on the intelligence community‘s ability to detect and help deter future attacks.” While there have been complaints about the implemented surveillance procedures, the U.S. “is amongst the best at protecting our privacy and civil liberties.”

“Our primary responsibility is to defend the nation,” Inglis said. “The programs we are discussing today are a core part of those efforts. We use them to protect the lives of Americans and our allies and partners worldwide.”

Inglis said the NSA and other intelligence outfits face a dilemma -- if they uncover a telephone number for a person reasonably believed to be plotting an act of terror against the U.S., how do the agencies find possible connections to that number? One way is through the surveillance programs.

“In simple terms, you are looking for a needle, in this case a number, in a haystack,” Inglis said. “But not just any number. You want to make a focused query against a body of data that returns only those numbers that are connected to the one you have reasonable suspicion is connected to a terrorist group. But unless you have the haystack – in this case all the records of who called whom – you cannot answer the question.”

Intelligence agencies require “a reasonably complete set of records and whether those records look back a reasonable amount of time to enable you to discover a connection between conspirators who might plan and coordinate across several years,” Inglis said. “Hence, all the records are necessary to connect the dots of an ongoing plot, sometimes in a time sensitive situation, even if only an extremely small fraction of them is ever determined to be the match you‘re looking for.”

Deputy Attorney General James M. Cole told the committee that the Department of Justice is constantly seeking to achieve the right balance between the protection of national security and the protection of privacy and civil liberties.

“We believe these two programs have achieved the right balance,” he said.

The records obtained, Cole said, are the sort that the U.S. Supreme Court has determined are not protected by the Fourth Amendment. The FISA Court provides that the government can only search the data if it has a “reasonable, articulable suspicion that the phone number being searched is associated with certain terrorist organizations.”

“The order also imposes numerous other restrictions on NSA to ensure that only properly trained analysts may access the data and that they can only access it when the reasonable, articulable suspicion predicate has been met and documented,” Cole said.

Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Special Select Committee on Intelligence and a member of the Senate Judiciary Committee, revealed that lawmakers are considering a few reform measures, like reducing the amount of time the NSA can retain phone records and requiring the agency to expedite its review of the collected data.

“These are things that can be done to increase transparency, but not to stop the program,” she said. “I believe, based on what I have seen and I read intelligence regularly, that we would place this nation in jeopardy if we eliminated these two programs.”