- Spencer Ackerman
national security editor at The Guardian. His latest piece is “U.S. Government Declassifies Court Order on NSA Surveillance as Pressure Builds.”
- James Bamford
investigative reporter who has covered the National Security Agency for the last three decades and helped expose the NSA’s existence in the 1980s. His most recent book on the agency is The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. His most recent piece is for The New York Review of Books, titled “They Know Much More Than You Think.”
Testifying before the Senate on Wednesday, National Security Agency Deputy Director John Inglis conceded that the bulk collection of phone records of millions of Americans under Section 215 of the USA PATRIOT Act has been key in stopping only one terror plot — not the dozens officials had previously said. Ahead of Wednesday’s Senate hearing, the Obama administration released three heavily censored documents related to its surveillance efforts, but the White House has refused to declassify the legal arguments underlying the dragnet or the original rulings by the U.S. Foreign Intelligence Surveillance Court, on which the released order to collect phone records was based. Meanwhile, the head of the NSA, General Keith Alexander, was repeatedly interrupted by critics of government surveillance in a speech Wednesday before the Black Hat conference, a gathering of hackers and cybersecurity professionals in Las Vegas. We’re joined by two guests: Spencer Ackerman, national security editor at The Guardian, and James Bamford, an investigative reporter who has covered the National Security Agency for three decades after helping expose its existence in the 1980s.
AMY GOODMAN: Our guests are Spencer Ackerman of The Guardian and James Bamford, investigative reporter who’s covered the NSA for the last three decades and helped expose the NSA’s existence in the 1980s. Jim Bamford, the breaking news at this hour is that Edward Snowden has been granted temporary asylum in Russia. Talk about the significance of this and what Edward Snowden has revealed, and its effect on what we’re seeing, even just this week, yesterday and today, in Congress.
JAMES BAMFORD: Well, it’s an enormous development. He—leaving the airport for the first time, and the Russians have granted him a year. In that year, he’ll be able to maybe figure a way out, if he still has intentions to go to one of the countries in South America. So it gives him some breathing room. At the same time, it’s the final act in this drama between the United States and Russia over what’s going to happen to him. So it’s very interesting. What’s going to happen now? Is Obama going to cancel his trip to Moscow, which is scheduled for September? So there’s a lot of interesting things that are going to start happening now in terms of U.S.-Russia relationship.
In terms of what Snowden gave away and what he leaked yesterday in the XKeyscore program, I think it was really amazing, the level of access that the NSA has to worldwide Internet communications. I mean, I’ve written about all this, time and time again, about access to Internet communications, but two things that struck me here was the amount of access, where they’re able to get access virtually anywhere in the world to everyone’s Internet communications, whether it’s email or Google searches, whatever, and the other thing was the—you know, when you’re looking at these locations, there’s three of these locations that are inside the United States. If you look at the map, one of them looks like it’s up in San Francisco, which is where the—AT&T has their large switch up there, and that’s where the NSA set up their secret room. So, it looks like there’s—that may be one of their locations. Another one looks like it’s in Texas, and another one may be in New York or maybe along the Jersey coast where the cables come in. So there’s an enormous, extensive access to all this telecommunications.
And how easy it is for analysts to actually access this, it’s just one of these pull-down menus on your computer that you just enter in an email address, put in my email address or whatever, and then there’s another little opening for how much of my emails you’d like to see—a week, a month or however much. And then you hit it, and then you’re reading it. And you could just flip through the subject lines and pick out whichever emails you want to read. It’s really frightening when you think of how much information these days we put into emails and Google searches, and how easy it is for this agency to access it all without really much oversight at all.
AMY GOODMAN: You know, what Edward—
JAMES BAMFORD: So it’s—
AMY GOODMAN: What Edward Snowden—
JAMES BAMFORD: —very extraordinary, I think.
AMY GOODMAN: What Edward Snowden said, famously, “I, sitting at my desk”—you know, he worked for Booz Allen, a contractor for NSA. He said, “I, sitting at my desk, certainly had the authorities to wiretap anyone, from you or your accountant to a federal judge, to even the president, if I had a personal email.” And the head of the House Intelligence Committee, Mike Rogers, immediately called him a liar, said that wasn’t true. I want to go to yesterday’s hearing. Some of the interactions were quite remarkable and important. At Wednesday’s hearing, Senate Judiciary Committee Chair Patrick Leahy of Vermont accused the Obama administration officials of overstating the success of the domestic phone log program. This is Senator Leahy questioning NSA Deputy Director John Inglis.
SEN. PATRICK LEAHY: How many cases was Section 215, bulk phone records collection, critical to preventing a terrorist plot?
JOHN INGLIS: Sir, I might answer in open session and then offer to provide—
SEN. PATRICK LEAHY: Sure.
JOHN INGLIS: —follow-up details in a classified session. I would say that the administration has disclosed that there were 54 plots that were disrupted over the life of these two programs.
SEN. PATRICK LEAHY: And Section 215 was critical to preventing—
JOHN INGLIS: No, sir.
SEN. PATRICK LEAHY: —54 plots?
JOHN INGLIS: And of those—and of those plots, 13 of those had a homeland nexus. The others had essentially plots that would have come to fruition Europe, Asia, other places around the world.
SEN. PATRICK LEAHY: How many of those—
JOHN INGLIS: Of the 13—
SEN. PATRICK LEAHY: How many of those 13 were plots to harm Americans?
JOHN INGLIS: Of the 13 that would have had a homeland nexus, 12 of those, 215 made a contribution. The question you’ve asked, though, is more precise, in the sense of is there a “but for” case to be made, that but for 215 those plots would have been disrupted. That’s a—that’s a very difficult question to answer insomuch as that’s not necessarily how these programs work. That’s actually not how these programs work. What happens is that you essentially have a range of tools at your disposal. One or more of these tools might tip you to a plot. Others of these tools might then give you an exposure as to what the nature of that plot is. And finally, the exercise of multiple instruments of power, to include law enforcement power, ultimately completes the picture and allows you to interdict that plot. Now, there is an example amongst those 13 that comes close to a “but for” example, and that’s the case of Basaaly Moalin.
SEN. PATRICK LEAHY: I’ve read that—I’ve read the material on that. It would be safe to say the talk of 54 “but for”s—
JOHN INGLIS: It is safe to say that, sir. This—
SEN. PATRICK LEAHY: —that’s not right.
JOHN INGLIS: This capability, the 215 collection of metadata, is focused on the homeland. It’s focused on detecting plots that cross the foreign-to-homeland domain.
SEN. PATRICK LEAHY: But—but it wasn’t—
JOHN INGLIS: But given that only 13 of those plots—
SEN. PATRICK LEAHY: It wasn’t a “but for” in 54 cases.
JOHN INGLIS: It was not, sir.
AMY GOODMAN: That was NSA Deputy Director John Inglis being questioned by the chair of the Senate Judiciary Committee, Patrick Leahy. I want to go back to Spencer Ackerman. Can you please unpack what we just heard?
SPENCER ACKERMAN: What you heard was extraordinary. You heard the deputy director of the NSA say two things simultaneously—first, that the bulk phone records collection that’s gone on for at least seven years of all Americans’ phone records—hundreds of million, yours, mine, everyone’s, your neighbors’, your family members’—has in maybe one case—maybe—stopped a terrorist attack, maybe, at absolute most. And he also said—and this is the subtler thing that’s easier to miss but is very important to link with yesterday’s documents disclosure—he said that was the wrong way to view the program, that it wasn’t a sort of, as he put it, “but for” instance of actually directly stopping a plot. That’s not really the right way to view it, he said.
Well, look at what they told Congress in 2009 and 2011, the documents that the Obama administration disclosed yesterday. They present both of these programs—the one that we sort of commonly call PRISM, the Internet habits and communications collection program, and the bulk phone records program that they call 215—when you put them together, they describe them indistinctly, inseparably, and talk about how they directly disrupted terrorist plots, and tell Congress, in secret documents, that disclosing these programs would disrupt or potentially disrupt one of the most important safeguards to keeping the country safe since 9/11 and making sure that there’s not another terrorist attack. That’s what they told Congress ahead of key votes authorizing these programs. And now in open session, directly, they can’t even say that seven years’ worth of phone records collection, basically a network of everyone’s social interactions conducted over the telephone, which is very easy to tell from metadata, for seven years, from all Americans, has maybe stopped one terrorist plot.
AMY GOODMAN: Stewart Baker, the former general counsel of the National Security Agency, also testified at Wednesday’s hearing. He opposed proposals for greater oversight over the NSA surveillance programs.
STEWART BAKER: Last thought—and I’ve heard Senator Blumenthal’s proposal and Judge Carr’s proposal—I have to express some doubts about the idea of appointing a counsel from outside the government to represent—I don’t know—well, that’s the first question: Who or what is this person supposed to be representing? Are they representing the terrorists? Are they representing the court? Are they representing some abstract interest in civil liberties? Or are we just going to let them decide? You know, we got rid of the independent counsel law precisely because we were uneasy about having private parties just make up their own public policy without any check from political decision makers or without any client. And I fear we are getting into the same situation if we start appointing counsel to represent something in the context of these cases.
AMY GOODMAN: That’s Stewart Baker, the former general counsel of the National Security Agency, at the judiciary hearing. Jim Bamford, your response?
JAMES BAMFORD: Well, they certainly can do a much better job on oversight than they’ve been doing. This is, you know, a terrible way to do oversight, through the FISA court. It’s a secret court at a secret address that produces secret decisions, and it’s basically a rubber stamp by—10 out of the 11 judges are Republicans, conservative Republicans. It’s never been reformed in probably the 35 years it’s been in existence.
They could easily do a number of things. They could have an advocate in there. They can have a government-appointed advocate who’s a fully cleared person who can argue the other side in these cases. They can have judges that are appointed by—not by one chief justice of the United States who may be politically oriented in terms of ideology. They could have a variety of judges appointed by the—by federal appeals court judges. So there’s a lot of things they can do, much more transparency in terms of what is released.
And we could see, by Spencer’s discussion here about all the lying, basically, that goes on—and we have Clapper saying a complete lie, in terms of what’s—in terms of surveillance, the fact that we weren’t—that the NSA was not doing any mass surveillance on American citizens. In my New York Review of Books article, I write about numerous times that Keith Alexander, the director of NSA, has gone out and said that his agency does no surveillance of Americans. And now we have—
AMY GOODMAN: Give us the examples.
JAMES BAMFORD: —the NSA coming out with all these—
AMY GOODMAN: Give us a couple of examples where Keith Alexander—so you’re saying Keith Alexander has repeatedly lied.
JAMES BAMFORD: Yeah, exactly. He’s said this numerous times, if you just go back to a number of his speeches. He’s given speeches before a number of groups. And these different groups, which I discuss in the article, he’s actually asked directly about surveillance on U.S. citizens, and he says, “No, we don’t do surveillance on U.S. citizens.” And, you know, what about the telephone records? I mean, if that’s not surveillance, I don’t know what it is.
So—and then you have—again, you have all this discussion here about 54 plots. The one plot that they actually have discussed was this subway plot in New York where the information actually came from the British. They were the first ones to come up with the information, not the NSA. And the other one was this case where somebody in San Diego was detected sending $8,000 to a group in Somalia. I mean, that’s their big—their big cases here? So, this is useless surveillance, and—but you can tell how Congress eventually approves this by peeling away all these layers of deception—
AMY GOODMAN: You mentioned Jim—
JAMES BAMFORD: —that goes into the presentations.
AMY GOODMAN: You mentioned James Clapper. On Wednesday, Republican Senator Chuck Grassley criticized Clapper, the U.S. director of national intelligence, for making untruthful statements to Congress in March about the bulk phone records.
SEN. CHUCK GRASSLEY: Oversight by Congress will play an important role as we move forward in evaluating the wisdom and value of the intelligence programs. However, Congress needs accurate information in order to conduct oversight responsibilities that the Constitution demands that we do under our checks and balances of government. That is why it was especially disturbing to see that the director of national intelligence was forced to apologize for inaccurate statements he made last March before Senate Intelligence Committee. Those statements concern one of the very important programs that we will be hearing about this very day. Nothing can excuse this kind of behavior from a senior administration official of any administration, especially on matters of such grave importance.
AMY GOODMAN: So, let’s go back to—now that was Chuck Grassley, Republican senator. But let’s go back to March, when Democratic Senator Ron Wyden questioned James Clapper about the NSA.
SEN. RON WYDEN: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
JAMES CLAPPER: No, sir.
SEN. RON WYDEN: It does not?
JAMES CLAPPER: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.
AMY GOODMAN: That’s what—that’s what Clapper said about the NSA in March. Spencer Ackerman, well, we’ve come a long way—or have we? Where is this going right now?
SPENCER ACKERMAN: Well, let’s just back up for one second. The reason why Wyden even asked Clapper that question in a public hearing in the first place was to go back to Keith Alexander. General Alexander, at a different hacker conference last year, was asked that question, in a different forum, and he said that it was hogwash, that there was just simply no truth to the idea that NSA was keeping what he called dossiers on millions of Americans. And a series of colloquies between Wyden, who on the Intelligence Committee knew something about what was actually happening here, and Clapper and the NSA, and ultimately led Wyden, out of frustration, to ask Clapper that question publicly. And he recently, in a speech last week, referred to a “culture of misinformation” in the intelligence community by senior intelligence officials—Clapper, Alexander and others—about, to the public, what exactly the NSA and other intelligence agencies are doing to surveil Americans. Wyden, on the Senate floor on Tuesday, told his colleagues again that—without using Clapper’s name—that Clapper lied to him again in a letter saying that violations of NSA’s own very few restrictions on how these programs are conducted were inadvertent and accidental. Wyden couldn’t go into details, because they’re classified, but he now has a track record of sort of, you know, coughing and sort of pointing and subtly directing attention to the discrepancies between what intelligence officials say publicly and what they say privately. To your question—
AMY GOODMAN: Spencer, let’s actually go to Senator Wyden—
SPENCER ACKERMAN: Yeah.
AMY GOODMAN: —in that speech he gave on the Senate floor on Tuesday, calling on the Obama administration to end the bulk phone records collection program.
SEN. RON WYDEN: The fact of the matter is that Americans’ phone records can reveal a lot of private information. If you know, for example, that somebody called a psychiatrist three times in a week and twice after midnight, you know a lot about that person. And if you’re vacuuming up information on whom Americans call, when they call and how long they talk, you are collecting an astounding amount of information about a huge number of law-abiding Americans. The intelligence agencies try to emphasize that they have rules about who can look at these bulk phone records and when. But, Mr. President, I want to emphasize this, because I think after all of the talking on cable and the talking heads on TV, I want to emphasize: None of these rules require the NSA to go back to a court to look at Americans’ phone records, and none of these rules erase the privacy impact of scooping up all of these records in the first place.
On top of that, as I indicated at the beginning, there have been a number of serious violations of those rules. For the senators who got the letter last Friday, you know that. I want to tell all the other senators on both sides of the aisle that the violations that I touched on tonight were more serious, a lot more serious, than the public has been told. I believe the American people deserve to know more details about these violations that were described last Friday by Director Clapper. Mr. President, I’m going to keep pressing to make more of those details public. And, Mr. President, it’s my view that the information about the details, the violations of the court orders with respect to the bulk phone record collection program, the admission that the court orders had been violated has not been, I think, fully fleshed out by the intelligence community, and I think considerable amount of additional information can be offered without in any way compromising our national security.
AMY GOODMAN: That is Oregon Senator Ron Wyden on the floor of the Senate on Tuesday. We’ll be going to more of him and discussion with our two guests, Spencer Ackerman with The Guardian—as well, we have been speaking with James Bamford, who has covered the National Security Agency for the last three decades. And again, the breaking news is that—the news we had out of Russia is that the person who started the ball rolling on all of these hearings right now, Edward Snowden, who has been holed up at the Moscow airport, has left the airport and granted temporary asylum in Russia for a year. This is Democracy Now! We’ll be back in a minute.
AMY GOODMAN: Again, the breaking news is that Edward Snowden, the NSA whistleblower and leaker who has been holed up at the Russian airport in Moscow, has been granted temporary asylum in Russia and has left the airport. We are talking about all that has been unleashed since he revealed what he knew about the NSA’s ability to monitor, surveil Americans and people around the world. On Tuesday, Senator Ron Wyden of Oregon said he has seen no evidence that NSA surveillance has stopped dozens of terrorist attacks.
SEN. RON WYDEN: I have seen no evidence—none—that this dragnet phone records program has provided any actual unique value for the American people. In every instance in which the NSA has searched through these bulk phone records, it had enough evidence to get a court order for the information it was searching for. And getting a few hundred additional court orders every year would clearly not overwhelm the Foreign Intelligence Surveillance Court. The intelligence agencies may argue that collecting Americans’ phone records in bulk is more convenient than getting individual court orders, but convenience alone does not justify the massive intrusion on the privacy of ordinary Americans. I believe it’s vitally important to protect the safety and the liberty of our people. I don’t see any evidence that this program helps protect either. That ought to be the standard of any domestic surveillance program. If the bulk collection program doesn’t protect privacy or security, then it ought to end, plain and simple. The executive branch simply hasn’t shown anything close to an adequate justification for this magnet—massive dragnet surveillance that has compromised the civil liberties of millions of Americans.
AMY GOODMAN: That’s Oregon Senator Ron Wyden on the floor of the Senate on Tuesday. Spencer Ackerman, what he’s saying?
SPENCER ACKERMAN: He’s saying, in really clear language, as clear as you can say about secret programs in public, that as now Chris Inglis, the deputy director of the NSA, has confirmed, that the NSA’s bulk phone records collection of Americans does not, has not stopped terrorist attacks as the NSA has repeatedly claimed. And he’s saying also that there could be pretty easy safeguards that basically just make the NSA’s telephony metadata collection just work as the PATRIOT Act’s plain language say it has to work: with some reasonable suspicion, individual suspicion, of connection to terrorism and espionage, before you go and get a subpoena or a warrant for it.
I want to tell one quick anecdote that I think sort of helps put this all in perspective, particularly with Wyden. In 2011, I was working for Wired magazine, and I got a call from Wyden’s office saying he wanted to talk to me ahead of the vote on the PATRIOT Act. Wyden called me in his office. We talked. And he said that, in secret, the executive branch was interpreting the PATRIOT Act in a way that, if the public knew about it, would astonish it, that the collection that it believed it had the power to perform amounted to essentially a revision of the PATRIOT Act entirely in secret. And I asked Wyden, “What do you mean by that? What’s actually happening?” And he said he couldn’t at all tell me any detail at all, because all of it is classified. Even the interpretation of the law in secret is classified. And he had fought a battle to even say publicly that such a thing had even happened. And for two years, Wyden had sort of coughed and hinted and nudged people to pay attention in some way to the fact that this was even happening. He gave it the term “secret law.”
I had been covering this for the past two years, and I had no idea what Wyden actually meant, until Edward Snowden disclosed to my newspaper this overwhelming bulk collection. Ron Wyden was entirely vindicated, and it sort of underscores that when Wyden says to his colleagues, “Hey, maybe look in secret about the discrepancy between what the NSA is saying its violations have been—meaning accidental—and what it actually said to us in secret. Maybe that kind of should get some more attention. Maybe more senators should go back into closed session,” he’s saying, “and look at that,” because Wyden’s track record really does bear out here. And it also points out, now that Chris Inglis has said it in public, that if Wyden is saying the bulk phone records collection hasn’t actually stopped terrorist attacks, well, Wyden’s track record of describing this stuff vaguely in public is pretty good.
AMY GOODMAN: During Wednesday’s Senate Judiciary hearing on the NSA’s collection of bulk phone records, Democratic Senator Dianne Feinstein of California, who chairs the Intelligence Committee, defended the program.
SEN. DIANNE FEINSTEIN: I was on the Intelligence Committee before 9/11, and I remember how little information we had and the great criticism of the government because of these stovepipes, the inability to share intelligence, the inability to collect intelligence. We had no program that could have possibly caught two people in San Diego before the event took place. I support this program. I think, based on what I know, they will come after us. And I think we need to prevent an attack, wherever we can, from happening.
AMY GOODMAN: James Bamford, Senator Dianne Feinstein is certainly in a very different place than these other senators that we’ve heard from, Republican and Democrat.
JAMES BAMFORD: Well, sure. And, you know, she brings up 9/11. You know, the U.S. government had all the information it needed to prevent 9/11. It didn’t need all these bulk data collections and everything else. All it needed to do was have the CIA tell the FBI or the State Department that these two people were coming to the United States—Khalid al-Mihdhar and Nawaf al-Hazmi—because they knew it. They knew it because they had copies of their visas that had been sent to them. And they knew that they were coming to the United States. The problem here wasn’t collecting information; the problem was distributing information. So, justifying all this based on 9/11 is just total nonsense. And, you know, when we’re talking—
AMY GOODMAN: Can it also get in the way of national security, Jim Bamford? Can it also—they are so—
JAMES BAMFORD: Yeah.
AMY GOODMAN: —inundated in information, they can’t make sense of any of it.
JAMES BAMFORD: Well, that’s the point. You know, we’ve had this going on for seven years, this internal domestic metadata telephone collection and, up until 2011, the email collection also. And yet, we’ve had—after 9/11, we had the—we had the underwear bomber, the person that was flying to Detroit that was going to blow up a plane Christmas Day, the Times Square bomber, the two people in Boston that just committed the bombing on the marathon day, and so forth. Now, all those people were communicating internationally, basically. They were all communicating either to Chechnya, or the Times Square bomber was communicating to Pakistan, and the underwear bomber was in Yemen and communicating with other countries in the Middle East and also to Nigeria, for example. So if the NSA had been taking all this attention and paying attention to foreign communications and international communications instead of domestic communications, it might have discovered those. But to have a track record where you’re not able to discover those, because you’ve got too much electronic hay on the electronic haystack and—impossible to find that little needle.
AMY GOODMAN: Does the FB—does the—
JAMES BAMFORD: That’s what these hearings are good for.
AMY GOODMAN: Does the FBI—
JAMES BAMFORD: I’m sorry?
AMY GOODMAN: Does the FBI, local police—do they have access to this information from the NSA, as well? Are they all sharing?
JAMES BAMFORD: The FBI is one of the principal recipients, I think, of a lot of this information. The other thing that this—one of the things that I think should worry a lot of people is that it’s not just the U.S. that gets this information. The British, the Australians and New Zealanders and the Canadians all have access to the same information, and they distribute it within their own government, law enforcement organizations. So, this bulk data collection is bulk data collection for not just the United States, but for all these other countries around the world.
AMY GOODMAN: James Bamford , I want to read a quote about the NSA and its domestic surveillance apparatus that you use at the end of your piece in The New York Review of Books. It’s from late Senator Frank Church, 1975. He said, quote, “That capability at any time could be turned around on the American people and no American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology. … I don’t want to see this country ever go across the bridge. I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.” Those, the words of the late Senator Frank Church in 1975, who convened the Church Committee hearings to challenge this level of total surveillance. And that’s the quote that Jim Bamford ends his piece with in The New York Review of Books.
I want to thank you both for being with us for this hour. James Bamford, investigative reporter who’s covered the National Security Agency for three decades, helped expose the NSA’s existence in the '80s. His most recent book, The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America. His most recent piece in The New York Review of Books, “They Know Much More Than You Think.” And thanks so much to Spencer Ackerman, national security editor at The Guardian. We'll link to your piece, as well; it’s called, “US Government Declassifies Court Order on NSA Surveillance as Pressure Builds.”