Officials Discuss Intelligence Programs at Senate Hearing
Officials Discuss Intelligence Programs at
By Cheryl Pellerin, American Forces Press
Washington D.C. – (AFPS)
– September 27, 2013 – At a hearing yesterday before the Senate Select Committee
on Intelligence, Army Gen. Keith B. Alexander, commander of U.S. Cyber Command
and director of the National Security Agency, and Director of National
Intelligence James R. Clapper Jr. discussed a NSA-managed classified
intelligence program, one of two made public by a security leak in June.
Joining Alexander and Clapper was Deputy Attorney General James Cole. All
were called to testify about both programs leaked to the press by former NSA
systems administrator Edward Snowden -- Section 215 of the Patriot Act, also
known as NSA's 215 business records program, and Section 702 of the Foreign
Intelligence Surveillance Act, or FISA.
In the months since the leaks, media reports have said the programs involve
secret surveillance by NSA of phone calls and online activities of U.S. citizens,
and revealed unauthorized disclosures of information by NSA, generating distrust
of the agency and calls for an end to the programs.
Section 702 of FISA and Section 215 of the Patriot Act both were authorized
by the Foreign Intelligence Surveillance Act, first approved by Congress in
Section 702 authorizes access, under court oversight, to records and other
items belonging to foreign targets located outside the United States. Section
215 broadens FISA to allow the FBI director or other high-ranking officials
there to apply for orders to examine telephone metadata to help with terrorism
In 2012, these programs resulted in the examination of fewer than 300
selectors, or phone numbers, in the NSA database, Alexander said during a
congressional hearing in July.
In his remarks, Cole described the 215 program, explaining that it involves
collecting only metadata from telephone calls.
“What is collected as metadata is quite limited. … It is the number a
telephone calls … It doesn't include the name of the person called,” Cole said.
“It doesn't include the location of the person called. It doesn't include any
content of that communication. It doesn't include financial information … It is
just the number that was called, the date and the length of the call.”
“If you want any additional information beyond that, you would have to go and
get other legal processes to find that information and acquire it,” he added.
Such metadata can only be looked at when there is a reasonable, articulable
suspicion for a specific phone number to be queried in the database, Cole said.
“Otherwise,” he said, “we do not and cannot just roam through this database
looking for whatever connections we may think are interesting or in any way look
at it beyond the restrictions in the court order.”
Only a small number of analysts can make such a determination, and that
determination must be documented so it can be reviewed by a supervisor and later
reviewed for compliance purposes, Cole added. The program is conducted according
to authorization by the FISA Court, which must reapprove the program every 90
“Since the court originally authorized this program in 2006, it has been
reapproved on 34 separate occasions by 14 individual Article Three judges of the
FISA Court,” Cole said. “Each reapproval indicates the court's conclusion that
the collection was permissible under Section 215 and satisfied all
Article Three of the U.S. Constitution establishes the judicial branch of the
Oversight of the 215 program involves all three branches of government,
including the FISA Court and the Intelligence and Judiciary Committees of both
houses of Congress, Cole said. Every 90 days, the Department of Justice reviews
a sample of NSA's queries to determine whether the reasonable articulable
requirement has been met.
DOJ lawyers meet every 90 days with NSA operators and with the NSA inspector
general to discuss the program’s operation and any compliance issues that may
arise, Cole explained.
With respect to Congress, “we have reported any significant compliance
problems, such as those uncovered in 2009, to the Intelligence and Judiciary
Committees of both houses,” he said.
“Those documents have since been declassified and released by the DNI to give
the public a better understanding of how the government and the FISA court
respond to compliance problems once they're identified,” Cole said.
In his testimony, Alexander told the panel that NSA’s implementation of
Section 215 of the Patriot Act focuses on defending the homeland by linking
foreign and domestic threats.
Section 702 of FISA focuses on acquiring foreign intelligence, he said,
including critical information concerning international terrorist organizations,
by targeting non-U.S. persons who are reasonably believed to be outside the
NSA also operates under other sections of the FISA statute in accordance with
the law's provisions, Alexander said.
“To target a U.S. person anywhere in the world, under the FISA statute we are
required to obtain a court order based on a probable cause showing that the
prospective target of the surveillance is a foreign power or agent of a foreign
power,” he explained.
“As I have said before, these authorities and capabilities are powerful,”
Alexander said. “We take our responsibility seriously.”
NSA stood up a directorate of compliance in 2009 and regularly trains the
entire workforce in privacy protections and the proper use of capabilities, he
“We do make mistakes,” Alexander noted.
“Compliance incidents, with very rare exceptions, are unintentional and
reflect the sorts of errors that occur in any complex system of technical
activity,” he said.
The press has claimed evidence of thousands of privacy violations but that is
false and misleading, Alexander said.
“According to NSA's independent inspector general, there have been only 12
substantiated cases of willful violation over 10 years. Essentially one per year,”
he said. “Several of these cases were referred to the Department of Justice for
potential prosecution, and appropriate disciplinary action in other cases. We
hold ourselves accountable every day.”
Of 2,776 violations noted in the press, he said, about 75 percent were not
violations of court-approved procedures but rather were NSA's detection of valid
foreign targets that traveled to the United States. The targets are called
roamers and failure to stop collecting on them as soon as they enter the United
States from a foreign country is considered a violation that must be reported.
“NSA has a privacy compliance program that any leader of a large, complex
organization would be proud of,” Alexander said. “We welcome an ongoing
discussion about how the public can, going forward, have increased information
about NSA's compliance program and its compliance posture, much the same way all
three branches of the government have today.”
NSA's programs have contributed to understanding and disrupting 54
terrorism-related events, Alexander told the panel, with 25 in Europe, 11 in
Asia, five in Africa, and 13 in the United States.
“This was no accident. This was not coincidence. These are the direct results
of a dedicated workforce, appropriate policy, and well-scoped authorities
created in the wake of 9/11, to make sure 9/11 never happens again,” Alexander
In the week ending 23 Sept., he said, there were 972 terrorism-related deaths
in Kenya, Pakistan, Afghanistan, Syria, Yemen and Iraq. Another 1,030 people
were injured in the same countries.
“The programs I've been talking about -- we need these programs to protect
this nation, to ensure that we don't have those same statistics here,” Alexander
With respect to reforms, he said, on Aug. 9 President Barack Obama laid out
specific steps to increase the confidence of the American people in the NSA
foreign intelligence collection programs.
“We are always looking for ways to better protect privacy and security,”
Alexander said. “We have improved over time our ability to reconcile our
technology with our operations and with the rules and authorities. We will
continue to do so as we go forward and strive to improve how we protect the
American people, their privacy and their security.”
In his remarks to the panel, Clapper said that over past 3 months he’s
declassified and publicly released a series of documents related to Section 215
“We did that to facilitate informed public debate about the important
intelligence collection programs,” he said. “We felt in the light of the
unauthorized disclosures, the public interest in these documents far outweigh
the potential additional damage to national security. These documents [allow
them to] see the seriousness, thoroughness and rigor with which the FISA Court
exercises its responsibilities.”
Even in these documents, Clapper said, officials had to redact some
information to protect sensitive sources and methods such as particular targets
“We'll continue to declassify more documents. It's what the American people
want,” he said. “It's what the president has asked us to do. And I personally
believe it's the only way we can reassure our citizens that the intelligence
community is using its tools and authorities appropriately.”
But, Clapper said, “we also have to remain mindful of potentially negative
long-term impact of over-correcting to the authorizations granted to the
Clapper added, “As Americans we face an unending array of threats to our way
of life -- more than I've seen in my 50 years in intelligence. We need to
sustain our ability to detect these threats. We welcome a balanced discussion
about civil liberties but it's not an either-or situation. We need to continue
to protect both.”
Army Gen. Keith B. Alexander
James. R. Clapper
Special Report: The Cyber Domain
Special Report: Defense Intelligence