Obama aides grilled on phone surveillance

NSA program draws senators' skepticism

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WASHINGTON -- Obama administration officials on Wednesday faced deepening political skepticism over a far-reaching counterterrorism program that collects millions of Americans' phone records, even as they released newly declassified documents in an attempt to spotlight privacy safeguards.

The previously secret material -- a court order and reports to Congress -- was released Wednesday morning by the director of national intelligence, James Clapper, as a Senate Judiciary Committee hearing opened, during which lawmakers sharply questioned the efficacy of the collection of bulk phone records. A senior National Security Agency official conceded that the surveillance effort was the primary tool in thwarting only one plot -- not the dozens officials had previously suggested.

In recent weeks, political support for such broad collection has sagged, and the House last week narrowly defeated a bipartisan bid to end the program, at least in its current form. On Wednesday, senior Democratic senators voiced equally strong doubts.

"This bulk-collection program has massive privacy implications," said Senate Judiciary Committee chairman Patrick Leahy, D-Vt. "The phone records of all of us in this room -- all of us in this room -- reside in an NSA database. I've said repeatedly, just because we have the ability to collect huge amounts of data does not mean that we should be doing so. ... If this program is not effective, it has to end. So far, I'm not convinced by what I've seen."

Administration officials defended the collection effort and a separate program targeting foreigners' communication as essential and operating under stringent guidelines.

"With these programs and other intelligence activities, we are constantly seeking to achieve the right balance between the protection of national security and the protection of privacy and civil liberties," Deputy Attorney General James Cole said. "We believe these two programs have achieved the right balance."

Mr. Cole nonetheless said the administration is open to amending the program to achieve greater public trust.

Sensing a looming shift in the privacy-versus-security cultural calculus, the White House has ordered Mr. Clapper to recommend changes that could be made to the phone surveillance program, and President Barack Obama invited a bipartisan group of lawmakers to the White House today to discuss their concerns about the NSA programs.

A White House official said top Democrats and Republicans on the House and Senate intelligence panels will attend. So will Sens. Mark Udall, D-Colo., and Ron Wyden, D-Ore., who have raised alarms about the NSA's sweeping domestic surveillance. Two others urging more agency oversight, Sen. Dick Durbin, D-Ill., and Rep. James Sensenbrenner, R-Wis., also will attend.

The NSA phone records collection program began after the September 2001 terrorist attacks and was brought under Foreign Intelligence Surveillance Court supervision in 2006. But its existence remained hidden until June, when the Guardian newspaper in Britain published a classified FISC order to a U.S. phone company to turn over to the NSA all call records. Former NSA contractor Edward Snowden leaked the order to the newspaper.

On Wednesday, the Guardian published new documents provided by Mr. Snowden that outlined previously unknown features of an NSA data retrieval system called XKeyscore. The newspaper reported that the search tool allowed analysts to "search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals."

The Guardian published NSA slides describing the system, indicating that analysts used it to sift through government databases, including Pinwale, the NSA's primary storage system for email and other text, and Marina, the primary storage and analysis tool for "metadata." Another slide described analysts using XKeyscore to access a database containing phone numbers, email addresses, log-ins and Internet user activity generated from other NSA programs.

The newspaper said the disclosures shed light on Mr. Snowden's claim that the NSA surveillance programs allowed him, while sitting at his desk, to "wiretap anyone -- from you or your accountant to a federal judge, or even the president, if I had a personal email." U.S. officials have denied he had such capability.

In a statement responding to the Guardian report, the NSA said: "The implication that NSA's collection is arbitrary and unconstrained is false. NSA's activities are focused and specifically deployed against -- and only against -- legitimate foreign intelligence targets.

"Access to XKEYSCORE, as well as all of NSA's analytic tools, is limited to only those personnel who require access for their assigned tasks," the agency said. "... Not every analyst can perform every function, and no analyst can operate freely. Every search by an NSA analyst is fully auditable, to ensure that they are proper and within the law."

On Wednesday, Mr. Clapper disclosed the FISA court's "primary" order that spells out the program's collection rules and two reports to Congress discussing the program, authorized under Section 215 of the "business records" provision of the Foreign Intelligence Surveillance Act. Administration officials released the documents to reassure critics that the program is strictly supervised and minimally invasive.

For instance, the primary order states that only "appropriately trained and authorized personnel" may have access to the records, which consist of phone numbers of calls made and received, their time and duration, but not names and content. Officials call this metadata. The order also states that to query the data, there must be "reasonable, articulable suspicion," presumably that the number is linked to a foreign terrorist group.

But the documents fueled more concern about the program scope among civil liberties advocates pressing the administration to release its legal rationale that might explain what makes such large numbers of records relevant to an authorized investigation.

Perhaps most alarming to some critics was the order's disclosure that queries of the metadata return results are put into a "corporate store" that may then be searched for foreign intelligence purposes with fewer curbs.

That disclosure takes on significance in light of NSA deputy director John Inglis' testimony last month that analysts could extend their searches by "three hops." That means that starting from a target's phone number, analysts can search on the phone numbers of those in contact with the target, then the numbers of people in contact with that group. In theory, that is potentially millions of people, said American Civil Liberties Union deputy legal director Jameel Jaffer, who also testified Wednesday.

Privacy advocates criticized the reports' redactions of information about the NSA's failure to comply with its own internal rules. That is "among the most important information that the American public needs to critically assess whether these programs are proper," said Mark Rumold, an Electronic Frontier Foundation staff attorney.

At the Senate hearing, Mr. Leahy voiced upset with the administration for suggesting the program was as effective in thwarting terror plots as another NSA program, authorized under Section 702 of FISA and targeting foreigners' communications. "I don't think that's a coincidence when we have people in government make that comparison, but it needs to stop," he said of attempts to conflate the two programs' utility.

He noted that senior officials had testified that the phone logging effort was critical to thwarting 54 plots, but after reviewing NSA material, he said that assertion cannot be made -- "not by any stretch." Pressed on that point by Mr. Leahy, Mr. Inglis admitted that the program "made a contribution" in 12 plots with a domestic nexus, but only one case came close to a "but-for," or critical contribution.


Associated Press contributed.


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