- The Washington Times - Wednesday, July 31, 2013

The Obama administration signaled Wednesday that it is ready to accept some changes to the National Security Agency telephone snooping program, as intelligence officials fought fiercely against congressional critics to preserve what they say is a vital tool in rooting out terrorist plots.

But lawmakers of both parties said the program is proving to be a tough sell inside Congress and among voters back home, particularly because of inaccurate claims the administration has made over the years about the scope of its snooping.

The frustration was visible Wednesday as senators grilled intelligence and law enforcement officials, saying the administration has used secrecy laws to prevent Congress from informing the American people and has misrepresented key data that would help lawmakers decide whether the NSA surveillance programs are even needed.

“I think the patience of the American people is beginning to wear thin, but what has to be of more concern in a democracy is the trust of the American people is wearing thin,” said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat and the chamber’s senior lawmaker.

Stung by leaks that made the NSA program public this year, President Obama and his top lieutenants now say they are willing to change some parts of the program and perhaps declassify some of the secret court opinions on which it is based — though they have not made specific suggestions.

“It’s worth having a debate about where we’re going to strike that balance between security for the nation and making sure that people’s privacy and civil liberty rights are being honored,” said James Cole, deputy attorney general. “And that’s a tough balance to find, but it’s a balance worth talking about, and it’s the process that we are welcoming and engaging in right now.”

The White House announced that it has invited key lawmakers to meet with Mr. Obama on Thursday to try to assuage concerns about the program.

Among those expected to attend the briefing: the top Democrats and Republicans on the House and Senate intelligence committees; Sen. Ron Wyden, Oregon Democrat and an outspoken critic of NSA domestic data-gathering programs; Sen. Richard J. Durbin, Illinois Democrat and Rep. F. James Sensenbrenner Jr., Wisconsin Republican.

Last week the House came close to voting to defund the records collection program as part of debate on a spending bill.

Even many of those who voted to preserve the program, which survived on a 217-205 vote, said they will have to see changes if they are to remain onboard.

Eyeing changes

Elizabeth Goitein, co-director of the Brennan Center for Justice’s liberty and national security program, said she is waiting to see how open the administration is to making changes and how much pressure Congress exerts.

“I think they will negotiate if and when they have to, and not before,” she said of the administration. “They are still feeling out the waters in terms of whether they’re going to be forced to make changes.”

The NSA program, which the agency says is authorized by Section 215 of the Patriot Act, requires phone companies to turn over the so-called metadata for every phone call made in the U.S., including which numbers were dialed and the length of the conversations.

But NSA Director Gen. Keith Alexander said Wednesday that such massive data-collection efforts do not include information on where the calls were made on mobile phones, or the names or addresses of individual telephone subscribers.

Under a court order, the metadata can be stored for up to five years and can be examined when the government believes it has reasonable suspicion of potential terrorism. The officials who testified to the Senate said they can then find out whom their suspect was calling and try to identify other potential terrorists. No phone conversations were tapped under the program.

Details of the long-secret program, which has its origins in the George W. Bush administration’s program of warrantless surveillance conducted under the president’s authority as commander in chief, were leaked by government contractor Edward Snowden, sparking a major national and international debate over the value and perils of such extensive snooping. Mr. Snowden fled the country and is now in diplomatic limbo in a Moscow airport holding area.

Desperately fighting to maintain the program, the administration has begun to release some of the orders that form the legal basis for the program, and other details.

The three documents released Wednesday, all heavily redacted, include 2009 and 2011 reports to members of the congressional intelligence committees about the use of the programs. They also include a 2013 order by the Foreign Intelligence Surveillance Act (FISA) secret court, which authorized the program. The court must grant permission every 90 days to keep the program running.

The 2011 report to Congress acknowledges that there were “a number of technical compliance problems” with the program that raised red flags about how it was being used.

“However, neither [the Department of Justice], NSA nor the FISA court has found any intentional or bad-faith violations,” the 2011 document says. The following three lines in the document were blacked out.

Officials have previously acknowledged there were some problems but said they were all caught through regular internal safeguards and that they took steps to correct them.

Seeking transparency

Sen. Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence and a backer of the program, said she has suggested several changes that could improve the transparency of NSA programs, including releasing more information about the number of phone numbers that are singled out for investigation and letting the private phone companies say more about what the government is requiring them to turn over.

The California Democrat also said the amount of time the government stores the data could be reduced from five years to two or three years.

“It’s my understanding that the usefulness of it tails off as the years go on,” she said.

Intelligence officials said they believe the point of diminishing returns is five years but that they would be open to studying the data further.

Mr. Wyden, the Oregon Democrat who for years had warned that the government surveillance efforts were going too far, but who was legally blocked from airing his concerns, said the intelligence community has shot itself in the foot with its zeal for secrecy.

He said the declassified documents showed that the administration had misled Congress about the value of another program that collected email records.

In the 2009 and 2011 documents provided to Congress, the administration told lawmakers that the email program was “vital” and “an important capability.” But in 2011, under pressure from Mr. Wyden, officials acknowledged that the program did not have the operational value they had claimed, and they shut down the program, he said.

He said the government even misled the secret court that authorizes the collection of records.

“This experience demonstrated that intelligence agencies’ assessments of the usefulness of particular collection programs — even significant ones — are not always accurate,” Mr. Wyden said.

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