Documents Shed New Light on NSA Data Gathering

By : SIOBHAN GORMAN

Newly declassified documents on Wednesday revealed additional details about past problems with a National Security Agency program to collect the vast majority of Americans’ phone records and a similar program to collect data on Internet transactions that the NSA says it has since shut down.

The documents also raised new questions about why the NSA shuttered its program to collect so-called metadata on email and other Internet communications. One document from 2011 called it a unique tool providing an “early warning system” to detect terrorist plots, which seemed to contradict recent claims by NSA officials that they shut the program down later that year because it lacked intelligence value.

Director of National Intelligence James Clapper declassified and released three documents outlining the phone and Internet data collection programs as top intelligence and law-enforcement officials defended NSA’s surveillance programs at a Senate Judiciary committee hearing.

Those documents included the secret court order setting out the parameters of the phone-records collection program and two summaries from 2009 and 2011 that the Justice Department provided to Congress as part of their efforts to renew the provisions of the Patriot Act, the law that provides the legal basis for the NSA phone and now-closed Internet data programs.

The release of the three documents, along with critical remarks by lawmakers during Wednesday’s hearing, underscore the degree to which the Obama administration has been put on the defense in justifying the counterterrorism benefits of the NSA surveillance programs, particularly ones that sweep up Americans’ data.

The documents also highlight the intense secrecy that shrouded these two programs. Two documents, prepared for lawmakers, are prefaced with a warning that the information describes “some of the most sensitive foreign intelligence collection programs conducted by the United States government” and that disclosure would cause “exceptionally grave damage” to national security.

The documents, in part, bolstered the Obama administration’s argument that there are a series of internal and external checks to ensure that the programs, designed to collect vast amounts of Americans’ data, are not misused.

However, a Justice Department document dated Feb. 2, 2011, which summarizes the two programs, devotes nearly a full page to “compliance issues” with both programs.

That summary provides additional details that help explain Mr. Clapper’s acknowledgment in a letter to Sen. Ron Wyden (D., Ore.) on Friday that the phone-records program had run into “a number of compliance problems.”

The 2011 document states that both the phone and Internet metadata programs had “a number of technical compliance problems and human implementation errors” in 2009. Those problems were discovered by Justice and NSA internal reviews. Significant portions of the document were redacted and the details of the compliance problems were not included.

But once discovered, the problems were reported to the secret national-security court, which placed restrictions on the collection of the records until the problems were resolved to the court’s satisfaction, the 2011 summary says.

The court imposed additional safeguards that were not specified in the 2011 summary. Sen. Wyden said in a speech on the Senate floor Monday that the problems were “more serious” than intelligence agency officials have suggested, but has not provided details.

That document also makes the government’s case of the “intelligence value” of the phone and Internet data collection programs.

The two programs “significantly strengthen” the government’s “early warning system for the detection of terrorists and discovery of plots against the homeland,” the summary says. It adds that “there are no intelligence collection tools that, independently or in combination, provide an equivalent capability.”

The summary also makes the case that NSA needs as much metadata as possible to draw connections. “The more metadata NSA has access to, the more likely it is that NSA can identify, discover and understand the network of contacts to targeted numbers or addresses,” it says. The reason, it says, is that NSA applies its “sophisticated analysis to the massive volume of metadata” to uncover important connections.

Yet later that year, NSA shut down the Internet-metadata collection program, NSA Director Keith Alexander said in late June, because it “did not have the value to stop the terrorist attacks that we need.”

On Wednesday, senators pressed officials to explain the value of the phone records program, which continues to be in effect.

NSA Deputy Director John Inglis repeated the administration’s explanation that the phone-records program helped gather evidence in a dozen U.S. terrorist plots, but he acknowledged that it is difficult to show that the information could not have been obtained another way.

Security officials sought to use the hearing to renew their efforts to convince skeptical lawmakers the surveillance programs are necessary to prevent terror attacks.

“We need all these tools,” said Sean Joyce, deputy director of the Federal Bureau of Investigation, who argued that Internet, phone, and other surveillance programs all work together to stitch small pieces of data pointing toward terror plots. “We must have the dots to connect the dots.”

The chairman of the committee, Sen. Patrick Leahy (D., Vt.) repeatedly pressed Mr. Inglis on whether anyone had been fired or disciplined for the leaks by former contractor Edward Snowden, whose revelations about the surveillance programs sparked the current public controversy.

“How soon will we know who screwed up?” Mr. Leahy asked.

Mr. Inglis acknowledged that the Snowden leaks represent a failure of security, but said the agency was still investigating exactly how that happened and who may be at fault. “We will hold them accountable,” he said.

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