06.13.2013 0

Did the NSA chief admit the agency is recording everything?

By Robert Romano

“If we didn’t collect that ahead of time, we couldn’t make these connections, so what we create is a set of data and we put it out here and then only under specific times can we query that data.”

That was National Security Agency (NSA) head Gen. Keith Alexander in testimony to the Senate Appropriations Committee on June 12 admitting that phone metadata on everybody is in fact being collected in real-time.

Here, Alexander was referring to the periodic collection of phone records by the agency from Verizon and presumably all other phone carriers, enabling the agency to go back in time and see who called who, at what time, and for what duration.

Civil liberties groups are already suing against the practice as a clear violation of Fourth Amendment protections against unreasonable searches.

So why is the agency collecting this information? Alexander referred to a problem encountered during the 9/11 terrorist plot. “We all had this concern coming out of 9/11. How are we going to protect the nation because we did get intercepts on [hijacker Khalid al] Mihdhar, but we didn’t know where he was, we didn’t have the data collected to know that he was a bad person.”

Alexander continued, “And because he was in the U.S., the way we treat it is he’s a U.S. person, so we had no information on that.” So, the collection of the phone metadata on U.S. persons on an ongoing basis, therefore, is to enable the agency to be able to connect the dots on an impending domestic terrorist attack and potentially prevent it.

Alexander hypothesized, what if this system had been in place? “Because we had stored that data in a database, we now have what we call a reasonable, articulable suspicion, we could take that number and go backwards in time and see who he was talking to and if we saw there were four other groups, we wouldn’t know who those people were, we’d only get the numbers, we’d say this looks of interest, and pass that to the FBI.”

At this point in his testimony, Alexander was still only referring to the phone metadata, and how it is being accessed. But how does this process work? He explained, “The methodology would be let’s put into a secure environment call details — these are to-from records, and at a selected time. So we don’t know anything that’s in there, we won’t search that unless we have some reasonable, articulable suspicion about a terrorist-related organization.”

He added, “The system just gives us back who he was talking to, but if you didn’t collect it, how do you know who he’s talking to? And so the issue really becomes if you don’t have the information.”

Alexander asked, “How do we solve this problem?” Now we know. In short, the government decided to collect all of the phone records domestically. Then, he added, “once we identify a person of interest, it goes to the FBI.”

The hearing then turned to court orders and warrants. When are those issued? A periodic, generalized warrant is issued to give the agency access to the phone records nationwide, but what about the content of the communications?

Sen. Dianne Feinstein, who also chairs the Senate Intelligence Committee, asked Alexander, “It’s my understanding you have the metadata, you have the records of what appears on a phone bill, and if you want to go to the content, then you have to get a court order.”

Alexander responded, “It’s correct,” adding later, “Sen. Feinstein, if you want to get the content, you’d have to get a court order.”

Read between the lines. The agency head appears to be confirming that, yes, it is possible with a court order to go back and retrieve the content of a phone call that had appeared in the metadata.

But how could the agency access the content of a phone call, even with a court order, from past metadata if it was not already recorded? This raises clear constitutional questions, because conversations on U.S. persons can be recorded only when there is probable cause and a warrant issued by a court.

Not beforehand.

This implies that the NSA may be recording everything.

And then if it needs to go back in time to review the content of a phone call,  they can. The argument Alexander made as it relates to phone metadata — “if we didn’t collect that ahead of time, we couldn’t make these connections” — could equally be applied to the content of the calls.

While no one can doubt how incredibly useful such a tool might be to intelligence agencies in attempting to thwart a potential attack, that’s not the point. Alexander claimed the phone and Internet surveillance programs were useful in disrupting supposed terrorist activities in “dozens of cases.”

The problem is this clearly gets around iron-clad constitutional protections against these types of searches. For the system to work as intended, it appears to require the agency to record everything beforehand.

Consider how such information might be abused, and was recently, in the case of the sweeping AP phone records case. There, the call records of reporters for an entire month were dug into. It was an attempt to uncover whoever had leaked information leading to a May 7, 2012, AP report that the government had thwarted an al Qaeda plot to blow up a U.S.-bound jetliner.

Supposedly, it was just the phone metadata, but based on what we now know, can national security reporters be so sure that their conversations with confidential sources are really secure?

It raises the question of how else these sweeping surveillance powers might be abused, posing not just threats to the Fourth and Fifth Amendments, but also to the First Amendment’s protection of the freedom of the press. This is too much power.

Robert Romano is the Senior Editor of Americans for Limited Government. 

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