The NSA's bulk collection program may soon end, but they may not care

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Marco Werman: Hi, I'm Marco Werman and this is The World. Congress is about to decide the future of surveillance. Section 215 of the Patriot Act, the U.S. government's bulk data collection program, is on the line.

 

Michael Morrell: The government holding this data creates the potential for abuse, and there's been plenty of times in our history when the government has abused its power.

 

Werman: In a few minutes we'll more from the CIA's former deputy director, who thinks the system could use a change. First, though, let's go deeper on the congressional debate. The house has voted to end the NSA's bulk collection of phone data with some caveats. If the Senate chooses not to follow suit, Section 215 could simply expire in a couple of weeks with huge implications for counter-terrorism operations. For the latest from Washington, we turn to David Sanger of the New York Times.

 

David Sanger: Well, what's different in this bill is that it would essentially enact what President Obama proposed in January of 2014, which was to take the government out of the business of collecting, doing the bulk collection, of the telephone numbers, duration of calls, basically the billing information about every telephone call made in the country and every telephone call made and received from outside the country into the United States. But that doesn't mean the government wouldn't have any access to it, Marco. Remember, the telecom companies, AT&T, Verizon, Sprint, they've all collected this data for years, and they've collected it for billing. And so now what would happen is you'd go back to the way life was essentially before the government began pouring it into a huge database of its own, and if the government saw a number that they wanted to go check out, they'd have to get an individual warrant from the foreign intelligence surveillance court and go off to AT&T and Verizon and others and pull those records. Now, in reality, those companies are building facilities that would make that a very short and efficient process, so the question is, in the end, if you're an ordinary American, does it make a big difference to you whether the repository of these numbers is in the hands of the government or in the hands of private industry. And to some people, that does make a difference.

 

Werman: As you've said, it's always been in the hands of private industry. The government just seemed to have easier access to it. So what burden of proof will the NSA need or the government need to go to the FISA Courts and get those warrants? Because so far, it's been pretty broad. They've only rejected one request in the last five years out of more than 8,000.

 

Sanger: Well, it would have to show that it was relevant to an investigation and it was narrow and tailored. Now, the objection to having this program within the government was that government employees could rummage around and perhaps do this without the court knowing about it. That's harder to do when it's in the hand of private industry. But there's always the risk that somebody working for one of the private telecoms could rummage around and do the same.

 

Werman: Now, there have been Democrats and Republicans who'd say this alteration to Section 215 still doesn't go far enough and the bill still needs to go to the Senate. Is it possible the Senate could make new provisions to the bill?

 

Sanger: It is entirely possible, and there's been a group of Republicans who have been more hawkish on this, like Mitch McConnell, the Senate leader, who have argued that we should just keep the program as it exists. It looks right now like he's being outnumbered, in part by the combination of the left side of the Democratic Party and the Tea Party crowd and more Libertarian side of the Republican Party, who have found some common ground here. So the question is, in what form would this ultimately take? There's one other feature that's worth mentioning, Marco--we wrote about this about a week ago in the times--which is, the NSA, the dirty little secret is, doesn't really care about this program that much any more.

 

Werman: Why?

 

Sanger: Well, they don't care about it because it hasn't turned out to be all that useful, and it's highly expensive. And you'll notice, you're not hearing any screaming from the NSA or the Director of National Intelligence about this house bill. Why is it? Because they've already moved on. They're thinking about other ways they could spend that money.

 

Werman: Do you know how else they could spend that money? Something we should be concerned about? And by the way, how is this going to affect that massive multi-billion dollar complex out in Utah where they're going to store all this data?

 

Sanger: Well, the good thing about storing data is, there's lots of other data to store. If you're the NSA, espionage of the traditional way, listening in to phone calls, all the kind of stuff, is fine, but to some degree can sort of be left to the summer interns. The high art at the NSA these days is all in the cyber side of things. Offensive cyber operations, active defensive cyber operations, that's where the money, the energy, and the talent is going.

 

Werman: David Sanger with the New York Times speaking with me from Washington. Thank you.

 

Sanger: Thank you.

 

Werman: My next guest is okay with the idea that private companies would be the ones holding our phone data. Michael Morrell was the CIA's acting director from 2012 to 2013. He's also the author of The Great War of Our Time: The CIA's Fight Against Terrorism from Al Qaeda to ISIS.

 

Morrell: The government should be required to get a court order every time they want to query the data. That's what I think is a good compromise here. And I happen to believe--I can't prove this--but I happen to believe that had the program been in place, we might have had a good shot at seeing some of the communications between 9/11 hijackers, and therefore, perhaps, a shot at disrupting 9/11. So it's an important program--

 

Werman: Even with all the allegations of stovepiping? I mean, from everything I've heard, that seems to be the big problem with Intelligence.

 

Morrell: Sure, absolutely it was a problem, but this would have given you another opportunity. Look, there haven't been any privacy or civil liberties abuses by the NSA in this program, but the government holding this data creates the potential for abuse, and there's been plenty of times in our history when the government has abused its power. So that's what's led us to say, hey, let's keep the program going, but let's take the data out of the hands of the government and force a little bit more oversight in terms of allowing the government to query the data.

 

Werman: There have been no abuses? Really?

 

Morrell: Correct.

 

Werman: Well, I mean, there's the case in San Francisco, the plantiffs versus the Justice Department for taking their metadata from AT&T, not to mention people who check in on former girlfriends, so isn't that abuse?

 

Morrell: So yes, that happened on a couple of occasions at the NSA, but that was not this program. That was not the 215 program. That was another program. And one of the problems, Marco, here is that when Edward Snowden disclosed this program, the media took this to the scariest corner of the room. The media implied in what it reported, and I remember watching this on CNN, the media reported that NSA was listening to your phone calls and NSA was reading your emails. I remember listening that first day to CNN say over and over again, if you call your grandmother in Arkansas, NSA is going to know. And that's just not true. So I think there was a frightening of Americans--

 

Werman: But NSA does know and can know. It is true.

 

Morrell: No, it's not true. It's not true. They know, they know what number called what number for what period of time. That's the only thing they know. They don't know the location of those numbers. They don't know who the individuals are. Now, they can find out, right, and that's the potential for abuse, but they don't know that when they're running these queries. They're just looking for what numbers are calling what numbers and which numbers might have associations to terrorists.

 

Werman: But you can construct several different pieces of metadata and find out a lot more.

 

Morrell: Sure, absolutely, and that's why the potential for abuse is there, right? So if you have--just making this up, right--if you have my phone number and you have what numbers my phone called, right, you can do a Google search and you can find out that my number is me, Michael Morrell, and you can do a Google search and you can find out that I've called a psychiatrist, that I've called a dating service, that I've done all of these things that would be rather embarrassing to me. So yeah, you can find that out, and that's why there's a potential for abuse here. And that's why the review group that I was on unanimously said the government shouldn't hold this data and you should have a court order every time.

 

Werman: Your chapter on Edward Snowden ends with this line. You write that NSA officers are patriots and Snowden is a traitor. What about the other NSA officers who we know now were, even before Snowden, trying to let citizens of this country know about secret surveillance on the internet? People like William Binney and Edward Loomis. Are they also traitors?

 

Morrell: The 215 program, approved by two presidents: President Bush and President Obama. Approved by multiple attorney generals, both Republican and Democrat. So, Edward Snowden saying "I know better than all of those people", that "there's something wrong with this program and I'm going to leak this to the American people and let the American people decide", that is-- There is an amount of arrogance there that is really hard to overstate.

 

Werman: Couldn't you just come back and say, "It doesn't mean it's right just because a bunch of people said it's legal"?

 

Morrell: Well, they not only said it's legal. The Justice Department said it's legal and all these other people said it's the right thing to do. People representing the American people. There are some programs in the intelligence community that the public simply can't know about because if the public does know about them, then our adversaries will know about them and our adversaries will adjust the way that they communicate, making it more difficult for us to protect America.

 

Werman: Well, there were-- There were representatives of the American people--

 

Morrell: So, there are representatives of the American people, both presidents and members of Congress, who are authorized to know these programs and to pass judgement on them on behalf of the American people, and that's what happened in this case.

 

Werman: Right. There were representatives of the American people in Congress asking Keith Alexander, the former head of the NSA, was there or is there not a bulk data collection program. He said there was not. Was he lying under oath?

 

Morrell: Some of the questions were unfairly put. In my view, unfairly put to representatives of the intelligence community and public, specifically trying to put them on the spot, make it difficult for them to answer.

 

Werman: But, isn't that what a House Committee is supposed to do?

 

Morrell: Behind the scenes, right? That's where that work gets done. That's why those intelligence committees were created in the first place. That's how they operate: behind the scenes, in secret. I'm not disagreeing with you here that there's more room to talk to the American people about this, but there also has to be an understanding that there is a line you can't cross in terms of making things public because that will advantage our adversaries, number one. And, number two, it can't be sole individuals who decide that they're going to leak stuff whenever they think it's the wrong thing to do because then there'd be leaks every single day of the week.

 

Werman: It is kind of rich that Keith Alexander now wants to sell his services to the tune of one million dollars based on what he learned at the NSA.

 

Morrell: I still see terrorism as the number-one threat to America, but the cyber threat is number two and rising fast. And some companies in the private sector are prepared for it and many companies are not, and so I'm actually supportive of people like Keith going out there and trying to help the private sector trying to deal with these very serious security threats.

 

Werman: Finally, you write about Snowden: "One thing I am sure of is he was not acting out of a simple desire to protect the privacy and civil liberties of Americans or even citizens overseas." How can you be so sure what his motives were?

 

Morrell: If I could say one thing to him, it would be "Edward, if you--" And I'm going to give him the benefit of the doubt here, Marco, that he says his motivation is what it was. If he's right about that, that he wants the American people to decide whether or not these programs should be done or not, then he should also want those same American people to judge his actions in this regard. So, he should come home and be judged, and if a jury of his peers says, "You're not guilty. What you did was the right thing. You needed to open our eyes," then he should walk. But, he should trust those same American people to judge him if he's going to trust them to judge the 215 program.

 

Werman: Obviously worried about a fair trial.

 

Morrell: He is. He is.

 

Werman: Michael Morrell served as the CIA's acting director from 2012 to 2013. His new book, The Great War of Our Time: The CIA's Fight Against Terrorism from Al Qaeda to ISIS. Michael Morrell, thank you.

 

Morrell: Great to be with you, Marco.

 

Werman: My conversation with Michael Morrell is part of SafeMode, our reporting project on new global security challenges and solutions. Find more stories like this one and take part in our SafeMode group on Facebook. That's all at pri.org/safemode.