Saying he “could not be more proud” of the people working with him, NSA Director Keith Alexander clarified questions surrounding his agency’s surveillance activities in a hearing with the Senate Appropriations Committee. Alexander, an army general, was technically appearing in his capacity as commander of the United States Cyber Command to discuss web-borne national security threats. But as Chairwoman Barbara Mikulski (D-Md.) noted, “In the last several days, many intelligence issues have been in the press … I understand that these are issues that are very much on the public’s mind and members of the Senate.”
The Edward Snowden leaks dominated the hearing. A lot of new information came out today, most of it about phone metadata gathering, all of it highly technical or legalistic. More time will be required to put it in proper context. For now, here are the most important takeaways:
General Alexander confirmed the program is justified under Section 215 of the PATRIOT Act, pertaining to “business data” sharing, which he said only applies to phone metadata; Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) questioned this assertion, citing the large volume of requests under the 1979 Foreign Intelligence Surveillance Act (see below).
General Alexander opaquely explained that NSA only collects and stores metadata; the FBI investigates persons of interest, with the NSA passing along relevant data.
The mass archiving of metadata was presented as a vehicle for retroactive scrutiny of suspects; intelligence analysts want the ability to thoroughly explore an individual’s past connections.
If the government wants to investigate an individual, it must demonstrate “reasonable, articulable suspicion” of criminality under FISA Section 702 to the secret FISA court that oversees classified surveillance (which has received 34,000 requests since 1979, denying only 11).
Senate Intelligence Committee Chairwoman (and NSA defender) Dianne Feinstein (D-Calif.) confirmed with General Alexander that the phone records archived by NSA are discarded after five years, and most are never accessed
If intelligence officials want to access other data such as phone wiretaps they must acquire a court order, “as in a conventional investigation,” but by implication from the FISA court.
FISA Section 702 requires surveillance be tied to a specific investigation; the legal arguments that interpret that language to justify the surveillance of all American phone lines remains classified (as with the drone targeted killing program).
All of this should be qualified by noting that, without independent verification, the NSA director and senators expressing familiarity with his agency’s activities must be taken at their word. Many rank-and-file members, including participants in today’s NSA hearing, have expressed profound unfamiliarity with these programs. Stay tuned: This story is constantly developing.