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Congressional Hearing on the National Security Agency

Aired June 18, 2013 - 10:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JAMES COLE, DEPUTY ATTORNEY GENERAL: Now, one of the things to keep in mind is under the law, the Fourth Amendment does not apply to these records. There was a case quite a number of years ago by the Supreme Court that indicated that toll records, phone records like this, that don't include any content, are not covered by the Fourth Amendment because people don't have a reasonable expectation of privacy in who they called and when they called. That's something you show to the phone company. That's something you show to many, many people within the phone company on a regular basis.

Once those records are accessed under this process and reasonable articulable suspicion is found, that's found by specially trained people. It is reviewed by their supervisors. It is documented in writing ahead of time so that somebody can take a look at it. Any of the accessing that is done is done in an auditable fashion. There is a trail of it. So both the decision and the facts that support the accessing and the query is documented. The amount that was done, what was done -- all of that is documented and reviewed and audited on a fairly regular basis.

There are also minimization procedures that are put into place so that any of the information that is acquired has to be minimized. It has to be limited and its use is strictly limited. And all that is set out in the terms of the court order. And if any U.S. persons are involved, there are particular restrictions on how any information concerning a U.S. person can be used in this.

Now, there is extensive oversight and compliance that is done with these records and with this process. Every now and then, there may be a mistake -- a wrong phone number is hid or a person who shouldn't have been targeted gets targeted because there is a mistake in the phone record, something like that.

Each of those compliance incidents, if and when they occur, have to be reported to the FISA court immediately. And let me tell you, the FISA court pushes back on this. They want to find out why did this happen, what were the procedures and the mechanisms that allowed it to happen, and what have you done to fix it. So whenever we have a compliance incident, we report it to the court immediately and we report it to Congress. We report it to the Intelligence Committees of both houses and the Judiciary Committees of both houses.

We also provide the Intelligence and Judiciary Committees with any significant interpretations that the court makes of the 215 statute. If they make a ruling that is significant or issue an order that is significant in its interpretation, we provide those, as well as the applications we made for those orders, to the Intelligence Committee and to the Judiciary Committee.

And every 30 days, we are filing with the FISC, with the court, a report that describes how we implement this program. It includes a discussion of how we're applying the reasonable, articulable suspicion standard. It talks about the number of approved queries that we made against this database, the number of instances that the query results and contain a U.S. person information that was shared outside of NSA. And all of this goes to the court.

At least once every 90 days and sometimes more frequently, the Department of Justice, the Office of the Director of National Intelligence, and the NSA meet to assess NSA's compliance with all of these requirements that are contained in the court order. Separately, the Department of Justice meets with the inspector general for the National Security Agency and assesses NSA's compliance on a regular basis.

Finally, there is by statute reporting of certain information that goes to Congress in semiannual reports that we make on top of the periodic reports we make if there's a compliance incident. And those include information about the data that was required and how we are performing under this statute.

So once again keeping in mind, all of this is done with three branches of government involved: oversight and initiation by the executive branch with review by multiple agencies; statutes that are passed by Congress, oversight by Congress; and then oversight by the court.

Now, the 702 statute under the FISA Amendments Act is different.

(END LIVE FEED)

CAROL COSTELLO, CNN ANCHOR: All right, we're going to step away. This is Deputy Attorney General James Cole he's talking about that NSA program that's been called into question by, of course, the NSA leaker Edward Snowden. General Alexander is expected to speak again soon. He's the head of the NSA. We're going to take a quick break. We'll come back with much more.

(COMMERCIAL BREAK)

COSTELLO: All right. You're looking at a live House hearing on Capitol Hill and you're -- specifically you're looking at James Cole. He's a deputy attorney general. He's explaining the rules under which the NSA is allowed to collect phone numbers and information from the Internet and how it's overseen by the Justice Department and all three branches of government.

But the real star of this NSA hearing is of course, is General Keith Alexander, he's head of the NSA, he is expected to reveal two specific terror plots that were thwarted by this NSA program that the NSA leaker Edward Snowden you know who went to Hong Kong and what all the fuss is about.

I want to ask Peter Bergen a question. He's our national security analyst. He's an expert on terrorist. General Alexander, Peter, in his opening remarks said, "Because of the Patriot Act, because of this program you know under Section 215, he said, "If we have had in before 9/11, 9/11 may never have happened. What do you think?

PETER BERGEN, CNN NATIONAL SECURITY ANALYST: Well look, Carol there's a lot of thing that we could have had before 9/11 that would have prevented it happening. Take, for instance, the no-fly list, of which there're only a dozen people on the no-fly list on 9/11. Take reinforced cockpit doors which didn't exist on planes before 9/11. Take public knowledge of the fact that al Qaeda was a problem, which was largely absent before 9/11. Take the fact that the CIA and the FBI barely talked to each other before 9/11. Take the fact that the FBI didn't have really an intelligence capacity before 9/11. I mean there's a whole laundry list of things you can say that would have prevented 9/11.

There wasn't a TSA before 9/11, there wasn't a DHS, there wasn't a National Counterterrorism Center, so you can point to a lot of -- there's no single factor that would have been a magic bullet to prevent 9/11. There was a whole set of kind of systemic failures that allowed this to happen.

COSTELLO: But -- but does the NSA have to prove that this -- this program that collects phone number and information from the Internet, does it have to prove that this in larger part than the other things you mentioned can prevent terror attacks?

BERGEN: Yes, well we're going to hear from General Alexander and hopefully he'll lay out more details than he did last week about specific plots that were averted.

He mentioned last week Najibullah Zazi who is planning an attack on the Manhattan subway in 2009 is an example of a successful interruption of a terrorist plot. Maybe he'll get into more details. He also mentioned David Headley, who is a Chicago resident, who was planning to blow up a bomb outside a Danish newspaper in 2009 that had printed cartoons of the Prophet Muhammad that were deemed offensive by many Muslims.

So my guess is he'll maybe elaborate on those plots. There may be another plot that he has to discuss, but the fact is that his assertions last week that dozens of terrorist plots had been averted -- I don't think that adds up, certainly not in the United States. I mean we've had only had about 40 terrorist plots in total in the United States since 9/11, that you can really point to.

He may -- there may be an announcement Carol to say, look there were a lot of plots averted overseas but at the end of the day, this program was sold to the American public -- or has been sold to the American public as keeping Americans safe. A, it's very nice if you can prevent terrorist plots overseas, but I think most Americans welcome a debate about this program, if it's, you know, not really preventing that many terrorist attacks, or at least it's worth -- it's a discussion worth having.

COSTELLO: I want to bring in Dana Bash and Gloria Borger too. Dana, I could swear that General Alexander said that this NSA program thwarted at least 50 terror attacks and that he was going to provide documentations to the intelligence committee so that they could look at those cases in private.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That's exactly what he said. He said that that is going to happen tomorrow. He's going to come and present details to members of the intelligence committee again in classified setting so we won't be able to see it, to give details on just how he thinks these programs have been so instrumental in you know in helping keep Americans safe, which is really what -- what these members of Congress want to see.

Obviously politically, what they really want to see and hear is what we're seeing right now, which is in public. They need -- they need some backup here. They need -- they feel that they are frankly out on a limb, that they genuinely support these programs, and we're talking again it's important to underscore in a bipartisan way, Republican chairman, the Democratic ranking member of this committee are saying almost exactly the same thing, they're working very hard together, to say, look, we have been overseeing this, we believe that this is right, we believe this is the proper balance of civil liberties and protecting Americans, but we need to put a little meat on the bone, for lack of a better way to say it, to explain to Americans and give them tangible understanding and proof of that.

So that's happening again as we first reported earlier with two specific plots that Alexander will say, at least were helped stop by these programs but there's a lot more than they can say in private and we heard from the -- from the chairman, from the ranking member, from others, that they have been incredibly concerned about talking about --

(CROSSTALK)

COSTELLO: Dana, General Alexander, the head of the NSA is speaking now. Let's listen if he's going to reveal those plots.

(BEGIN LIVE FEED)

GENERAL KEITH ALEXANDER, DIRECTOR, NSA: In recent years, the information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world. FAA 702 contributed in over 90 percent of these cases. At least 10 of these events included homeland-based threats. In the vast majority, business records, FISA reporting contributed as well. I would also point out that it is a great partnership with the Department of Homeland Security in those with a domestic nexus.

But the real lead for domestic events is the Federal Bureau of Investigation. It has been our honor and privilege to work with Director Mueller, and Deputy Directory Joyce who -- I'll turn it now over to Sean?

SEAN JOYCE, DEPUTY DIRECOTR, FBI: Thank you General. Thank you chairman and ranking member, and members of the committee for the opportunity to be here today. NSA and the FBI have a unique relationship, and one that has been invaluable since 9/11. And I just want to highlight a couple of the instances. In the fall of 2009, NSA using 702 authority intercepted an e-mail from a terrorist located in Pakistan. That individual was talking with an individual located inside the United States, talking about perfecting a recipe for explosives. Through legal process, that individual was identified as Najibullah Zazi. He was located in Denver, Colorado.

The FBI followed him to New York City. Later we executed search warrants with the New York Joint Terrorism Task Force and NYPD and found bomb-making components in backpacks. Zazi later confessed to a plot to bomb the New York subway system with backpacks. Also working with FISA business records, the NSA was able to provide a previously unknown number of one of the co-conspirators -- co-conspirators, Adis Medunjanin. This was the first core Al Qaida plot since 9/11 directed from Pakistan. Another example, NSA utilizing 702 authority was monitoring a known extremist in Yemen. This individual was in contact with an individual in the United States named Khalid Ouazzani. Ouazzani and other individuals that we identified through a FISA that the FBI applied for through the FISC were able to detect a nascent plotting to bomb the New York Stock Exchange.

Ouazzani had been providing information and support to this plot. The FBI disrupted and arrested these individuals. Also David Headley, a U.S. citizen living in Chicago. The FBI received intelligence regarding his possible involvement in the 2008 Mumbai attacks responsible for the killing of over 160 people. Also, NSA through 702 coverage of an Al Qaida affiliated terrorist found that Headley was working on a plot to bomb a Danish newspaper office that had published the cartoon depictions of the Prophet Mohammed. In fact, Headley later confessed to personally conducting surveillance of the Danish newspaper office. He, and his co-conspirators were convicted of this plot.

Lastly, the FBI had opened an investigation shortly after 9/11. We did not have enough information, nor did we find links to terrorism and then we shortly thereafter closed the investigation. However, the NSA using the business record FISA tipped us off that this individual had indirect contacts with a known terrorist overseas. We were able to reopen this investigation, identify additional individuals through a legal process, and were able to disrupt this terrorist activity.

Thank you. Back to you, General?

ALEXANDER: So that's four cases total that we've put out publicly. What we're in the process of doing with the inter-agency is looking at over 50 cases that were classified, and will remain classified, that will be provided to both of the Intel Committees of the Senate and the House, to all of you. Those 50 cases right now have been looked at by the FBI, CIA and other partners within the community, and the National Counterterrorism Center is validating all of the points so that you know that what we've put in there is exactly right. I believe the numbers from those cases is something that we can publicly reveal, and all publicly talk about.

What we are concerned, as the chairman said, is to going into more detail on how we stopped some of these cases, as we are concerned it will give our adversaries a way to work around those, and attack us, or our allies. And that would be unacceptable. I have concerns that the intentional and irresponsible release of classified information about these programs will have a long, and irreversible impact on our nation's security, and that of our allies. This is significant. I want to emphasize that the Foreign Intelligence is the best -- the Foreign Intelligence Program that we're talking about, is the best counterterrorism tools that we have to go after these guys.

We can't lose those capabilities. One of the issues that has repeatedly come up, well how do you then protect civil liberties and privacy? Where is the oversight? What are you doing on that? We have the deputy director of the National Security Agency, Chris Inglis, will now talk about that and give you some specifics about what we do, and how we do it with these programs.

CHRIS INGLIS, DEPUTY DIRECTOR, NSA: Thank you, General Alexander.

Chairman, Ranking Member, members of the committee, I'm pleased to be able to briefly describe the two programs as used by the National Security Agency with a specific focus on the internal controls and the oversight provided. Now first to remind these two complementary, but distinct programs are focused on foreign intelligence. That's NSA's charge. The first program executed under Section 215 of the Patriot Act authorizes he collection of telephone metadata only. As you've heard before, the metadata is only the telephone numbers, and contact, the time and date of the call, and the duration of that call.

This authority does not, therefore, allow the government to listen in on anyone's telephone calls, even that of a terrorist. The information acquired under the court order from the telecommunications providers does not contain the content of any communications, what you are saying during the course of the conversation, the identities of the people who are talking, or any cell phone locational information. As you also know this program was specifically developed to allow the U.S. government to detect communications between terrorists operating outside the U.S., who are themselves communicating with potential operatives inside the U.S., a gap highlighted by the attacks of 9/11.

The controls on the use of this data at NSA are specific, rigorous, and designed to ensure focus on counter-terrorism. To that end, the metadata acquired and stored under this program may be queried only when there is a reasonable suspicion based on specific and documented facts that an identifier, like a telephone number, is associated with specific foreign terrorist organizations.

This determination is formally referred to as the "reasonable articulable suspicion standard." During all 2012, the 12 months of 2012, we at NSA approved fewer than 300 unique numbers, which were then used to initiate a query of this data set.

The second program, authorized under Section 702 of the Foreign Intelligence Surveillance Act, authorizes targeting only for communications of foreigners who are themselves not within the United States for foreign intelligence purposes.

(END LIVE FEED) COSTELLO: All right. We're going to break away from the hearing to talk about these terror plots that were supposedly thwarted by this NSA program. Our national security analyst, Peter Bergen is on the phone. So General Alexander, the head of the NSA said that this collection of phone numbers and other information thwarted a bomb plot on the New York City subway system, a plot to bomb the New York Stock Exchange, and also prevented an attack similar to 9/11. And then they added a fourth in there, but that took place overseas and had to do with the attacks in Mumbai.

So in your estimation -- just kind of give us some insight to what they're talking about. Was this NSA program solely responsible for thwarting these attacks or was it more?

BERGEN: Well, we heard from General Alexander that (inaudible) the deputy director of the FBI, that four times they've been thwarted. One was an attack on the Manhattan subway. This was a serious al Qaeda plot. We've heard that already last week. In other words David Coleman Headley the Chicago resident who planned to attack a Danish newspaper. We also heard about that last week.

And then we heard about two other plots just now. One which without really -- I couldn't really see -- hear exactly what the plot was. It was not at all clear from the way it was describe. And another one, which definitely seems new which was a plan to attack the New York Stock Exchange.

But there seems to be some sort of fuzzy math going on here because that's three or four plots, not dozens of attacks, as we've been led to believe.

And so the other 50 plots, which are going to remain classified and discussed with the intelligence committee, we don't know what those are. But the fact is I'm fairly certain that almost all those will turn out to be plots overseas or perhaps material support cases, which tend to be pretty vague, you know, people sending money or -- to a terrorist organization overseas.

So I think the administration has made it -- sort of put itself in a bit of a box by making larger claims to this program than the record really reflects, which isn't to say that this programs hasn't had usable facts. But the question is how you (inaudible) and so far what we have heard today isn't very much different from what we heard last week. And the American public will have to make a judgment about whether the payoff, the kind of relatively small number of plots averted here in this country makes sense or any potential infringement to civil liberties.

COSTELLO: Interesting. I want to bring back in Jesselyn Radack. She's a former whistleblower. She works with the National Security Whistleblowers including those from the NSA.

Jesselyn, when you heard about these plots being thwarted by this NSA program, what went through your mind?

JESSELYN RADACK, WHISTLEBLOWER: It went through my mind that you could have thwarted such plots if they did occur through much narrower surveillance means, number one. Number two, NSA has had three weeks to get their talking points together, and their terror plots have evolved from two to dozens to 50. So it strains credulity that we're getting the right numbers here.

Again a number of those that were domestic -- I mean really we're talking maybe 25 percents but in terms of checks and balances that we keep getting told about and hammered over the head with, there really are none.

Congress, numerous members of Congress say they were misinformed or not told about the secret interpretation of section 215. The courts haven't been able to hear cases, because the executive branch has shut them down by asserting state secrets or lack of standing. Obviously NSA has not been rigorously briefing the right people. The FISA court is sort of a red herring.

It sounds like this special oversight, but really last year they approved nearly 2,000 applications brought to them and denied none. It's a rubber stamp. So really --

(CROSSTALK)

COSTELLO: I want to get to Gloria Borger because in light of all that's just been said, Gloria, the big sell will be to the American people and whether the American people are comfortable with this NSA program, and if they're listening to this hearing, are they?

BORGER: Well, you know, Carol, I mean so far when you look at all the polling from the American people, if you ask them specifically, you know, do you like the idea that this metadata is being collected, it depends how you ask the question. And people may not like the idea action but in the long run, the majority of is the American people say that they get it.

If it's to thwart any kind of terror attack, I think right now what we are hearing in this hearing is -- and the government going out of its way to sort of say -- and this is what you heard from the deputy attorney general, there is a method here, there are protections, that when we monitor these phone calls, there's no identity, no location, and no content in those calls, and that in order to get more information, we have to go to a court and essentially go through what you would go through with a grand jury to get a subpoena for more records and more information.

COSTELLO: Exactly.

BORGER: Whether this is -- whether there is a reason for the secrecy, and as Congressman Rogers pointed out, he said, look, right now what we're trying to do --

COSTELLO: Hey, Gloria, the General is speaking again. Let's listen.

BORGER: OK.

(BEGIN LIVE FEED) ALEXANDER: The U.S. government does not unilaterally obtain information from the servers of U.S. companies. Rather, the U.S. companies are compelled to provide these records by U.S. law using methods that are in strict compliance with that law.

Further, as the deputy attorney general noted, virtually all countries have lawful intercept programs under which they compel communications providers to share data about individuals they believe represent a threat to their societies. Communications providers are required to comply with those programs in the countries in which they operate.

The United States is not unique in this capability. The U.S., however, operates its program under the strict oversight and compliance regime that was noted above, with careful oversights by the courts, Congress, and the administration.

In practice, U.S. companies have put energy and focus and commitment into consistently protecting the privacy of their customers around the world while meeting their obligations under the laws of the U.S. and other countries in which they operate. And I believe they take those seriously.

Our third and final point - as Americans, we value our privacy and our civil liberties. Americans, as Americans, we also value our security and our safety. In the 12 years since the attacks on September 11, we have lived in relative safety and security as a nation. That security is a direct result of the intelligence community's quiet efforts to better connect the dots and learn from the mistakes that permitted those attacks to occur in 9/11.

In those 12 years, we have thought long and hard about oversight and compliance and how we minimize the impact on our fellow citizens' privacy. We have created and implemented and continued to monitor a comprehensive mission compliance program inside NSA. This program, which was developed based on industry's best practices...

(END LIVE FFED)

JOHN BERMAN, CNN ANCHOR: Hello, everyone, I'm John Berman. We've been monitoring these hearings in Washington. That's the director of the NSA, General Keith Alexander. We will go back to those hearings to get more information about what he's saying right after the break.

(COMMERCIAL BREAK)