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NSA Chief Expected To Reveal New Terror Plots; House Intelligence Committee Hearing on Surveillance

Aired June 18, 2013 - 10:00   ET


CAROL COSTELLO, CNN ANCHOR: Good morning. Thank you so much for being with me. I'm Carol Costello. We begin this morning in Washington where the NSA controversy is taking center stage on Capitol Hill. Right now the head of the NSA, General Keith Alexander -- well, actually in a couple minutes when he's seated, he will tell the House Intelligence Committee that the agency's programs helped stop two terror plots.

It's the first time General Alexander will speak publicly about how the NSA conducted those programs. His appearance comes as agency supporters defend the programs and cast out on NSA leaker Edward Snowden.

Chief congressional correspondent Dana Bash joins us now. Dana, you're breaking this story about what will be said in this hearing. Tell us more.

DANA BASH, CNN CHIEF CONGRESSIONAL CORRESPONDENT: That's right. I think we should clarify, as we've been reporting, Carol, Keith Alexander told Congress last week that he believes dozens, at least dozens of terror plots have been thwarted, at least in part, with the help of these programs. What we'll see this morning, according to a congressional source is him reveal declassified details about two of those plots that he was talking about.

Now, the back story here is that leaders of the intelligence committees here, including the one who's holding this hearing now, the Republican Mike Rogers, they've been really pressuring the intelligence committee to say, look, we're out there on a limb, we're defending these programs saying they are helping Americans keep safe.

We need you to intelligence community to declassify some information to help prove it because Americans, many of them simply aren't buying it. So that's what's going on. That's really the whole purpose of having this open hearing this morning. Intelligence committees don't have that many open hearings. Most of them are done in close pacified session. This is open. That's the main reason why.

So it is going to be interesting to see just exactly how far Alexander goes in giving details about that alleged thwarted plot with the help of these programs.

COSTELLO: Absolutely. Gloria Borger is here, too. Gloria, it's interesting that President Obama gave a very long interview to Charlie Rose last night where he talked about the NSA leaks and the NSA hearings, and now this hearing. So I guess the Obama administration sort of set the scene yesterday with that interview for what's to come today?

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Look, I think they realized the importance right now, Carol, of starting to lift the veil on how they do this. I mean, you saw our polls yesterday the president's plummeting in popularity. People don't trust him as much as they used to. Just last month, I think that's down by nine points.

I think what they're trying to demystify this to a certainly degree and explain to the American public why the president has made the decisions that he's made. Now, I think there's kind of a high bar here, because I think people don't really understand just what is this so-called FISA Court that you go to when you want to obtain a search warrant?

Is it a rubber stamp for the administration or the National Security Agency to go there when they want to obtain a search warrant? How real is this court? How protected are American people, you know? What does it take to get a warrant or can they just sort through the data and then get a warrant?

So I think those are questioning that the American people, particularly younger Americans want answered. We'll see if that happens today.

COSTELLO: Well, it's really hard to call in FISA Court transparent when everything is done in secret.

BORGER: It's not.

COSTELLO: It's not transparent clearly.

BORGER: There are good reasons, Carol, for the fact that it's secret, obviously, but there's nobody arguing the other side in a FISA Court, correct? I mean, you're just going there to obtain a search warrant, most everything is granted with rare exception, so I think there's a reason for it. I think these things need to be explained to the American people. I think what you're seeing from the administration is kind of a roll-out of this, a declassification, as Dana points out as being the prime example.

COSTELLO: I also want to bring in Jesselynn Radack. She's a former whistle-blower. Welcome. Thank you for being here this morning.


COSTELLO: Going back to what Dana was talking about, the NSA director, he is going to tell us about two terror plots that this program thwarted. If you read the blog that Edward Snowden put online yesterday courtesy of "The Guardian." He said, yes, they are going to tell about these. They are going to talk about these terror plots this program exposed, but ask them is this the only tool that was used?

In other words, what does that really prove? Because if foiling those terror plots just came from the use of phone records or internet communication, then OK, but he's saying it took more than that.

RADACK: Well, even if there were 100 terror plots thwarted, he's making an "ends justify the means" argument, because clearly the laws are at issue, The Patriot Act Section 215, and FISA do not contemplate any kind of domestic to domestic surveillance. And moreover, the FISA Court is a secret court, as you pointed out, which last year approved close to 2,000 applications and rejected none.

In my book that's textbook definition of being just a rubber stamp. So the fact that the FISA Court is reviewing this and that's been yew as the imprimatur of some type of external approval, that's just bunk and then, of course, Congress is the other body that would be giving approval and multiple people in Congress say they were misled at best and not told to worst.

Finally in terms of metadata, people shouldn't be rest assured by that. You can get a lot more from the metadata than you can get from the content, which I know is sort of counterintuitive but the case.

COSTELLO: Exactly. Back to Dana Bash, soon the Chairman Mike Rogers is going to make this opening statement. Do you think he'll look, you know -- he knows the American people are watching this hearing, right? Will he look out and say this program is definitely needed and the general is going to tell us why?

BASH: Yes, absolutely. Mike Rogers has been -- it's kind of ironic. He is a Republican and he has been probably one of the biggest defenders of the Democratic president's surveillance programs. He very much believes, along with his Democratic counterpart, who you will also see, Dutch Rubersberger, to try to explain that these are absolutely necessary.

They have very much helped keep Americans safe, and along the lines of what you were talking about with our guests, his argument is that Richard Snowden is simply not a whistleblower. That he is somebody who is flat-out lied about what this program can and can't do. That's likely going to be a part of the discussion now.

Gloria was also saying, this is very different, even if you didn't have the shackles of classified information on you, never mind the fact of the tap dance about what they can and can't say publicly. That's why this was so important, again in a bipartisan way, to have this hearing, which happened very fast. It was really put together late yesterday to have them come here in open session, which is really rare, and come talk.

COSTELLO: So Chairman Rogers is beginning his opening statement. Let's listen.

UNIDENTIFIED MALE: Still not working?

COSTELLO: That's got to hurt, especially with the chief sitting there, right? I'm sure they'll get together pretty soon. Dana, the head of the NSA, General Alexander, this is going to be strange for him. BASH: Yes, that's right. Actually is was remarkable and even people who don't agree with these programs say that they're pretty impressed with the way that he kind of definitely handled himself in a public hearing last week, a couple of public hearings last week, trying to explain in layman's terms what these programs are and aren't about. Certainly it's interesting and tough because not too long ago, the NSA was known as no such agency, didn't even admit that it exists. I think we hear Mike Rogers.

COSTELLO: Yes, let's listen.


REP. MIKE ROGERS (R-MI), CHAIRMAN, INTELLIGENCE COMMITTEE: Ranking member and I believe it is important to hold an open hearing today and we don't do a tremendous amount of those to provide this House and the public with an opportunity to hear directly from you how the government is using the legal authorities that Congress has provided to the executive branch since the terrorist attacks of September 11, 2001.

I'd also like to recognize the hard work of the men and women of the NSA and the rest of the intelligence community who work day in and day out to disrupt threats to our national security. People at the NSA in particular have heard a constant public drumbeat about a laundry list of nefarious things they are alleged to be doing to spy on Americans -- all of them wrong. The misperceptions have been great, yet they keep their heads down and keep working every day to keep us safe.

And, General Alexander, please convey our thanks to your team for continuing every day, despite much misinformation about the quality of their work. And thank them for all of us for continuing to work to protect America.

I also want to take this moment to thank General Alexander who has been extended as national security adviser in one way or another three different times. That's a patriot.

This is a very difficult job at a very difficult time in our history. And for the general to accept those extensions of his military service to protect this nation, I think with all of the -- the, again, the misinformation out there, I want to thank you for that.

Thank you for your patriotism. Thank you for continuing to serve to protect the United States, again. And you have that great burden of knowing lots of classified information you cannot talk publicly about. I want you to know, thank you on behalf of America for your service to your country.

The committee has been extensively briefed on these efforts over a regular basis as a part of our ongoing oversight responsibility over the 16 elements of the intelligence community and the national intelligence program.

In order to fully understand the intelligence collection programs most of these briefings and hearings have taken place in classified settings. Nonetheless, the collection efforts under the business records provision in Section 702 of the Foreign Intelligence Surveillance Act are legal, court-approved and subject to an extensive oversight regime.

I look forward from hearing from all of the witnesses about the extensive protections and oversight in place for these programs.

General Alexander, we look forward to hearing what you're able to discuss in an open forum about how the data that you have - you obtain from providers under court order, especially under the business records provision, is used.

And Deputy Attorney General Cole, we look forward to hearing more about the legal authorities themselves and the state of law on what privacy protections Americans have in these business records.

One of the frustrating parts about being a member of this committee, and really challenge, is sitting at the intersection of classified intelligence programs and transparent democracy as representatives of the American people.

The public trusts the government to protect the country from another 9/11-type attack, but that trust can start to wane when they are faced with inaccuracies, half truths and outright lies about the way the intelligence programs are being run.

One of the more damaging aspects of selectively leaking incomplete information is that it paints an inaccurate picture and fosters distrust in our government.

This is particularly so when those of us who have taken the oath to protect information that can damage the national security if released cannot publicly provide clarifying information because it remains classified.

It is at times like these where our enemies with -- our enemies within become almost as damaging as our enemies on the outside.

It is critically important to protect sources and methods so we aren't giving the enemy our play book.

It's also important, however, to be able to talk about how these programs help protect us so they can continue to be reauthorized. And then we highlight the protections and oversight of which these programs operate under.

General Alexander, you and I have talked over the last week, about the need to -- to be able to publicly elaborate on the success stories these authorities have contributed to without jeopardizing ongoing operations. I know you'll have the opportunity to talk about several of those today.

I place the utmost value in protecting sources and methods. And that's why you've been, I think, so diligent in making sure that anything that's disclosed comports with the need to protect sources and methods. So that, again, we don't make it easier for the bad guys overseas, terrorists in this case, to do harm to United States citizens, and I respect that.

I also recognize that when we are forced into the position of having so publicly discussed intelligence programs due to irresponsible criminal behavior that we also have to be careful to balance the need for secrecy while educating the public.

I think you have struck the right balance between protecting sources and methods and maintaining the public's trust by providing more examples of how these authorities have helped disrupt terrorist plots and connections. I appreciate your efforts in this regard.

For these authorities to continue, they must continue to be available. Without them, I fear we will return to the position where we were prior to the attacks of September 11th, 2001. And that would be unacceptable for all of us. I hope today's hearing will help answer questions that have arisen as a result of the fragmentary and distorted illegal disclosures over the past several days.

Before recognizing General Alexander for his opening statement, I turn the floor over to the ranking member for any opening statement he'd like to make.

REP. C.A. DUTCH RUPPERSBERGER, (D) MARYLAND: Well, I agree with really a lot of what the chairman said.

COSTELLO: We're going to step away from this, Dutch Rupersberger giving his opening statements, the ranking member on this committee then we'll hear from the NSA Chief General Keith Alexander. We're going to take a quick break. We'll be back with much more after this.


COSTELLO: All right, we'll take you back live to Capitol Hill where a House hearing is under way. Soon chief of the NSA will talk about how collecting phone records and other data helped stopped two terror plots against the United States. We expect General Alexander to testify before any moment.

The Democrat now making his opening statement, the chairman of the committee, Mike Rogers has already spoken. Let's head to Washington -- to our Washington studios at CNN and Dana Bash. It was interesting Mike Rogers went out of his way to call -- he just wrapped, I'm sorry, Dana. We're going to go back to the hearing because we expect General Alexander to testify right now. Let's listen.


ALEXANDER: Chairman, Ranking Member, thank you for the kind words. I will tell you it is a privilege and honor to serve as the director of the National Security Agency and the commander of the U.S. Cyber Command.

As you noted, we have extraordinary people doing great work to protect this country and to protect our civil liberties and privacy. Over the past few weeks, unauthorized disclosures of classified information have resulted in considerable debate in the press about these two programs. The debate had been fueled, as you noted, by incomplete and inaccurate information, with little context provided on the purpose of these programs, their value to our national security and that of our allies, and the protections that are in place to preserve our privacy and civil liberties.

Today, we will provide additional detail and context on these two programs to help inform that debate.

These programs were approved by the administration, Congress and the courts. From my perspective, a sound legal process that we all work together as a government to protect our nation and our civil liberties and privacy.

Ironically, the documents that have been released so far show the rigorous oversight and compliance our government uses to balance security with civil liberties and privacy.

Let me start by saying that I would much rather be here today debating this point than trying to explain how we failed to prevent another 9/11. It is a testament to the ongoing team work of the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Security Agency, working with our allies and industry partners, that we have been able to connect the dots and prevent more terrorist attacks.

The events of September 11, 2001 occurred, in part, because of a failure on the part of our government to connect those dots. Some of those dots were in the United States. The intelligence community was not able to connect those domestic dots, phone calls between operatives and the U.S. and Al Qaida terrorist overseas. Following the 9/11 commission, which investigated the intelligence community's failure to detect 9/11, Congress passed the PATRIOT Act.

Section 215 of that act, as it has been interpreted and implied, helps the government close that gap by enabling the detection of telephone contact between terrorists overseas and operatives within the United States. As Director Mueller emphasized last week during his testimony to the -- to the Judiciary Committee, if we had had Section 215 in place prior to 9/11, we may have known that the 9/11 hijacker Mihdhar was located in San Diego and communicating with a known Al Qaida safe house in Yemen.

In recent years, these programs, together with other intelligence, have protected the U.S. and our allies from terrorist threats across the globe to include helping prevent the terrorist -- the potential terrorist events over 50 times since 9/11. We will actually bring forward to the committee tomorrow documents that the interagency has agreed on, that in a classified setting, gives every one of those cases for your review. We'll add two more today publicly we'll discuss. But as the chairman noted, if we give all of those out, we give all the secrets of how we're tracking down the terrorist as a community. And we can't do that. Too much is at risk for us and for our allies. I'll go into greater detail as we go through this testimony this morning.

I believe we have achieved the security and relative safety in a way that does not compromise the privacy and civil liberties of our citizens. We would like to make three fundamental points. First, these programs are critical to the intelligence community's ability to protect our nation and our allies' security. They assist the intelligence community efforts to connect the dots.

Second, these programs are limited, focused, and subject to rigorous oversight. They have distinct purposes in oversight mechanisms. We have rigorous train programs for our analysts and their supervisors to understand their responsibilities regarding compliance.

Third, the disciplined operation of these programs protects the privacy and civil liberties of the American people. We will provide important details about each of those. First, I'd -- I'd ask the Deputy Attorney General Jim Cole to discuss the overarching framework of our authority.


JAMES COLE, DEPUTY ATTORNEY GENERAL: Thank you -- thank you, General.

Mr. Chairman, Mr. Ranking Member, members of the committee, as General Alexander said, and -- and as the chairman and ranking member have said, all of us in the national security area are constantly trying to balance protecting public safety with protecting people's privacy and civil liberties in this government. And it's a constant job at balancing this.

We think we've done this in these instances. There are statutes that are passed by Congress. This -- this is not a program that's off the books, that's been hidden away. This is part of what government puts together and discusses. Statutes are passed. It is overseen by three branches of our government, the Legislature, the Judiciary, and the Executive Branch. The process of oversight occurs before, during, and after the processes that we're talking about today.

And I want to talk a little bit how that works, what the legal framework is, and what some of the protections are that are put into it. First of all, what we have seen published in the newspaper concerning 215 -- this is the business records provisions of the PATRIOT Act that also modify FISA.

You've seen one order in the newspaper that's a couple of pages long that just says under that order, we're allowed to acquire metadata, telephone records. That's one of two orders. It's the smallest of the two orders. And the other order, which has not been published, goes into, in great detail; what we can do with that metadata; how we can access it; how we can look through it; what we can do with it, once we have looked through it; and what the conditions are that are placed on us to make sure that we protect privacy and civil liberties; and, at the same time, protect public safety.

Let me go through a few of the features of this. First of all, it's metadata. These are phone records. These -- this is just like what you would get in your own phone bill. It is the number that was dialed from, the number that was dialed to, the date and the length of time. That's all we get under 215. We do not get the identity of any of the parties to this phone call. We don't get any cell site or location information as to where any of these phones were located. And, most importantly, and you're probably going to hear this about 100 times today, we don't get any content under this. We don't listen in on anybody's calls under this program at all.

This is under, as I said, section 215 of the PATRIOT Act. This has been debated and up for reauthorization, and reauthorized twice by the United States Congress since its inception in 2006 and in 2011. Now, in order -- the way it works is, the -- there is an application that is made by the FBI under the statute to the FISA court. We call it the FISC. They ask for and receive permission under the FISC under this to get records that are relevant to a national security investigation. And they must demonstrate to the FISC that it will be operated under the guidelines that are set forth by the attorney general under executive order 12333. This is what covers intelligence gathering in the federal government.

It is limited to tangible objects. Now, what does that mean? These are like records, like the metadata, the phone records I've been describing. But it is quite explicitly limited to things that you could get with a grand jury subpoena, those kinds of records. Now, it's important to know prosecutors issue grand jury subpoenas all the time and do not need any involvement of a court or anybody else, really, to do so.

Under this program, we need to get permission from the court to issue this ahead of time. So there is court involvement with the issuance of these orders, which is different from a grand jury subpoena. But the type of records, just documents, business records, things like that, are limited to those same types of records that we could get through a grand jury subpoena.

Now, the orders that we get last 90 days. So we have to re-up and renew these orders every 90 days in order to do this. Now, there are strict controls over what we can do under the order. And, again, that's the bigger, thicker order that hasn't been published. There's restrictions on who can access it in this order. It is stored in repositories at NSA that can only be accessed by a limited number of people. And the people who are allowed to access it have to have special and rigorous training about the standards under which that they can access it.

In order to access it, there needs to be a finding that there is responsible suspicion that you can articulate, that you can put into words, that the person whose phone records you want to query is involved with some sort of terrorist organizations. And they are defined. It's not everyone. They are limited in the statute. So there has to be independent evidence, aside from these phone records, that the person you're targeting is involved with a terrorist organization.

If that person is a United States person, a citizen, or a lawful permanent resident, you have to have something more than just their own speeches, their own readings, their own First Amendment-type activity. You have to have additional evidence beyond that that indicates that there is reasonable, articulable suspicion that these people are associated with specific terrorist organizations.

Now, one of the things to keep in mind is under the law, the Fourth Amendment does not apply to these records.