Senators Not Impressed With James Clapper's Carefully Worded Responses

Say That Again

from the this-program? dept

You may recall that, back in June, 26 Senators had teamed up to send Director of National Intelligence, James Clapper, a series of rather direct questions about the NSA’s surveillance efforts. Clapper took his sweet time (nearly a month) to get back to them, but finally did so on Friday (always have to avoid the news cycle, I guess). The answers are… about what you’d expect: strongly denying certain things, using extremely precise language, and claiming that most of the important details are in the “classified response” that was attached for Senators only. Let’s dig in a bit:

This leak, along with the others that have occurred, will do significant damage to the Intelligence Community’s ability to protect the nation. But it is not correct to say that Section 215 had been “secretly reinterpreted.” The relevant materials were, of course, properly classified to protect sensitive intelligence collection activity, but, as Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees. Moreover, the Executive Branch undertook special efforts to ensure that all Members of Congress had access to information regarding this classified program prior to the USA PATRIOT Act’s reauthorization in 2011, including making a detailed classified white paper available to all Members. Specifically, in December 2009, the Department of Justice and the Intelligence Community provided a classified briefing paper to the Senate and House Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata program. Both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of Section 215. That briefing paper was then updated and provided to the Senate and House Intelligence Committees again in February 2011 for all Members in connection with the reauthorization that occurred later that year.

Note how it’s made clear that this information was available to those in Congress, but that doesn’t mean that most in Congress were looking over it — or that those who were allowed to see it (i.e., the Representatives and Senators themselves) could fully understand what it all meant without their staff experts who (for the most part) are not allowed to see that information. Notice that they didn’t provide a “briefing” for all members of Congress, but rather “a classified briefing paper… that could be made available.” These are not the words of someone who made sure that Congress would be informed. These are the words of someone who wanted to have a “cover your ass” trail down the road to pretend that Congress was informed.

Clapper also makes liberal use of “under this program” language to avoid answering more direct questions about things done by the NSA and other government agencies:

The data collected under this program is limited to telephony metadata: information about telephone calls such as the originating and dialed telephone numbers, the time a call is made and its duration. It does not include the content of any communication or the identity of any party to a communication…. In addition, as we have repeatedly and publicly said, we are not collecting cell site location information under this program…. Data acquired under this program may be used only to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.

Right. Under this program. But, this is just one of many programs. Not very comforting. In fact, later in the letter, Clapper admits that under other programs, the NSA also collects “internet metadata.”

In addition to the bulk telephony metadata collection, NSA has in the past used FISA authorities to collect bulk Internet metadata. The Government terminated this collection program in 2011 for operational and resource reasons reflected in the classified December 2, 2011 letter to the Senate Select Committee on Intelligence. NSA has not used USA PATRIOT Act authorities to conduct bulk collection of any other types of records. Additional information is provided in the classified supplement.

This information was already more or less public, with details coming out at the end of June.

Later, Clapper again insists that Congress was fully informed, but “fully informed” seems to mean something very different to him than it does to all those members of Congress who have been speaking out about the program:

… this program was operational and, as discussed above, Congress was fully aware of it when it reauthorized the legislation for an additional five year period in 2011.

There was also a question about whether or not the NSA is tracking locations via mobile phone data. Clapper again chooses his words carefully, giving a sort of “well, not at this time” type of answer, but by not saying that it doesn’t have the authority to do so, makes it clear that it believes it can do this if it wishes:

As noted above, under this program NSA is not currently receiving cell site location data, and has no current plans to do so. The Director of NSA indicated on October 20, 2011 that he would notify Congress of NSA’s intent to obtain cell site location data prior to any such plans being put in place.

Not surprisingly, the two main authors of the original letter, Senators Ron Wyden and Mark Udall are not particularly satisfied with this response:

This response is appreciated, but the intelligence community still has left many of the questions most important to the American people unanswered. Given the implications for the privacy of the millions of law-abiding Americans, intelligence leaders were specifically asked to demonstrate the unique value of the bulk phone records collection program. They did not. Instead, they persist in citing two cases where the government could have obtained a court order or emergency authorization for the information it needed. The bottom line is we still have yet to see concrete evidence that the dragnet collection of phone records provides any unique value.

It’s also deeply troubling that while the NSA claims no current plans to turn Americans’ cell phones into tracking devices, it clearly claims the authority to do so. This response leaves our question of past plans unanswered. Their violations of the rules for handling and accessing bulk phone information are more troubling than have been acknowledged and the American people deserve to know more details. And we are amazed that intelligence leaders deny that the PATRIOT Act has been ‘secretly reinterpreted’ when it is obvious that most Americans and many members of Congress had no idea that this law could be used for bulk collection of millions of law-abiding Americans’ personal records.

In addition, the intelligence community’s response fails to indicate when the PATRIOT Act was first used for bulk collection, or whether this collection was underway when the law was renewed in 2006. We believe that law enforcement and intelligence agencies should have the tools needed to protect the American people, but the collection of bulk phone records needlessly invades the privacy of law-abiding Americans without visibly enhancing their safety.

Also, remember that this is from James Clapper, who has already admitted to lying to Congress about these programs. It’s difficult to see how he has even the slightest credibility on this, let alone why he still has the job.

Filed Under: james clapper, mark udall, metadata, nsa, nsa surveillance, ron wyden, surveillance