Sen. Sheldon Whitehouse during the Senate Judiciary Committee hearing

National Security Agency Gen. Keith Alexander, Deputy Attorney General James Cole and Office of the Director for National Intelligence General Counsel Robert Litt were all witnesses for another Senate Judiciary Committee hearing on surveillance. It attempted to address some of the numerous issues that have been made clear as a result of news stories on documents from former NSA contractor Edward Snowden—stories which continue to be published.

Sen. Patrick Leahy, a Democrat from Vermont, highlighted the issue of a bulk collection program that collected the metadata of Internet communications and was discontinued in 2011. The Foreign Intelligence Surveillance Court suspended the program for a period before it was renewed, but the government claims it was not meeting “operational expectations.”

“It’s important that the administration does not believe there’s any legal impediment to restarting this bulk Internet data collection program (inaudible), or future administration wanted to do so. The legal justification of this Internet and metadata collection is troubling,” Leahy stated.

Leahy added, “As with the Section 215 program [bulk data collection of phone records under the PATRIOT Act], the Internet and metadata program was based on a relevant standard. As with the Section 215 program, there’s no adequate limiting principle to this legal rationale. The American people have been told that all their phone records are relevant to counterterrorism investigations. Now they’re told all the Internet and metadata is also relevant, and apparently fair game for the NSA to collect.”

Alexander made a plea to Leahy, who is the sponsor of legislation that would end the bulk data collection of Americans’ phone records under the PATRIOT Act, not to end this specific program.

“There is no other way that we know of to connect the dots. And so that’s gets us back to do we not do that at all? Given that the threat is growing, I believe that is an unacceptable risk to our country,” Alexander asserted. “So what we have to do is can we do more on the oversight and compliance and there are things that are being looked at, but taking these programs off the table, from my perspective, is absolutely not the thing to do.”

“Everybody is singularly focused on ensuring that we comply with the Constitution and the law,” Litt argued. “And as you know, in all the material that’s come out, there’s been no suggestion of any willful abuse or violation of privacy of people. The compliance violations that have occurred have been technical. They’ve been unintentional. But nobody’s been out there attempting to illegally spy on Americans or anything else.”

However, everyone in the United States intelligence community is not “singularly focused” on complying with the Constitution and of the law. They are “singularly focused” on the perceived threat of terrorism based off information that is being collected, stored and searched daily. They are “singularly focused” on fulfilling whatever mission set by the administration of President Barack Obama to advance foreign policy or protect national interests. And, FISA court opinions citing a history of misstatements to the court by government attorneys and “longstanding and pervasive violations” of court orders severely call into question the assertion that the US intelligence community is “singularly focused” on the Constitution or the law.

Much of what Alexander, Cole and Litt had to say had been stated in some form in recent months. If they didn’t utter these talking points, their most loyal defenders, who head intelligence committees in Congress—Senator Dianne Feinstein and Rep. Mike Rogers—uttered them (especially the fearmongering claim that “The Threat is growing”). Which is why the conduct of Democratic Senator Sheldon Whitehouse, who will be a key vote on any legislation to remove or restrain surveillance powers, was one of the more significant highlights of the hearing.

Whitehouse amplified this idea that bulk collection of any records—whether relevant or not and whether intrusive or not, must—should not be ended because governments around the world are taking advantage of the “era of Big Data,” which he described as “the ability to aggregate enormous amounts of information that don’t get looked at” until ways are figured out to “search for things in that big heap of data.”

“Our national intelligence establishment is not the only group that is playing in this big data area. We all know that Google and other private-sector providers are very, very actively in big data, data mining, and doing things like that, .
What can you tell me about what other governments are doing, without specifying names and releasing any national security information? I take it that other foreign sovereigns are doing very aggressive things in this space to try to pull as much information as they can as well, out of the cloud and out of the capacities of big data.”

Other “foreign sovereigns”—sometimes called foreign governments—are all “out there doing it.” Powerful countries have this capability. They are trying to pull as much data, and, Alexander told Whitehouse, none have the “oversight” of “their parliaments, congress, their courts and their administration.”

“And if we were to pass a law that prevented our intelligence and defense establishment from operating in that big-data atmosphere, we would be essentially unilaterally disarming in an arena in which other governments are very active. Is that true?” Whitehouse asked.

Alexander was not expecting such a question from a US senator. Imagine the allure of this argument—justifying all this surveillance that has made Americans feel uncomfortable by claiming it has to be done so the US can remain competitive in some Big Data arms race. It could reset the discussion and take it from the threat of terrorism to an argument about the US needing to maintain a technological capability to maintain a position as a superpower in the world.

“That’s true. In fact, I think some have likened it to because we have a powerful intel community or powerful Navy, we would tell our submarines to surface in those areas where people don’t — where their subs aren’t as good,” Alexander replied.

This was the look on his face after answering that question:

Gen. Keith Alexander, NSA director at Senate Judiciary Committee hearing

Does it worry anyone to think what was going through his head? The wheels were obviously rapidly turning.

The thought of “unilaterally disarming” pushed Whitehouse to essentially sound like a pitchman for the NSA’s bulk data collection program:

…[T]his operation is overseen by multiple inspectors general, multiple general counsels, multiple federal executive agencies. NSA connects in ways that provide varying levels of visibility, but in most cases, complete visibility to our Department of Defense, to the FBI, to the Department of Justice, Jim (ph), to the ODNI, the Office of the Director of National Intelligence, to the president, to the National Security Council.

So there’s considerable attention that is being dedicated to this. We have a court that is dedicated to this that reports to the Supreme Court. We have this legislative committee, the Senate Intelligence Committee, and the House committees.
So it’s hard for me to think of whatever we might do to add to the level of oversight. I think we may make it more efficient and effective, but I don’t want anybody to leave this hearing thinking that we just kind of leave this question to the NSA. We have built a system in which every branch of government and within those branches of government, in many cases, multiple different agencies and in some cases within those agencies multiple different and in some cases independent sectors all compete to have a look and to make sure that the right things are being done.

So I’ll let you all go. I appreciate what you’re doing. I understand that we need to get this right. But I think it would be a mistake to unilaterally walk away from the realm of big data to protect our national security when we’re perfectly comfortable with private companies doing that for — to make money and to find out more about us so they can market to us better and when foreign governments are energetically penetrating this space in order to accomplish similar results…

 

*

During a second panel, Edward Black, president and CEO of the Computer and Communications Industry Association since 1995 (a lobbyist), was confronted by Whitehouse, who decided to further advance his point that other governments are taking advantage of Big Data and have far, far less oversight than the United States does.

Here is the exchange in full:

WHITEHOUSE: …There is legitimate concern that the knowledge of our national security activities cast a shadow on the ability of American companies to compete internationally.
That was the basis of your testimony.

Do you believe that foreign customers believe that, for instance, if they sign up for a service with Waweah, that the Chinese government is not looking into this data? Or the Russian government, if they sign up, in areas under its jurisdiction, or the French government, for that matter?

Do you think that the United States government is actually the only government that’s trying to take advantage of big data?

BLACK: I hope our standard isn’t just to meet Waweah, but I do think the reality is that governments in general are inclined to want more and more information.
Too much.

That’s why our — what we address in our testimony is, in fact, standard that all governments should be asked to undertake disclosure in terms of limits. The difficulty is that the United States is very — in a difficult position in credibility when we are seen to have extremely pervasive, effective, widespread and some would say, not effectively limited process…

(CROSSTALK)

WHITEHOUSE: (OFF-MIKE) Russians actually are more effectively limited by the (inaudible) surveillance activity than the United States is?

BLACK: No, I’m not suggesting — I’m not doing comparison.

I’m simply saying that I don’t think most people, the citizens and the customers of the world, think that United States’ laws — first of all, I believe we do have some checks and balances that have some effectiveness.

Don’t get me wrong. You asked the question…

(CROSSTALK)

WHITEHOUSE: (OFF-MIKE) than any other country’s checks and balances who — that are engaged in this kind of behavior, correct?

BLACK: I’m not gonna talk to all of the countries. I certainly hope we have better ones…

(CROSSTALK)

WHITEHOUSE: (OFF-MIKE) is there another country that has a better…

BLACK: I think there’s many other country that don’t probably do as much collection as we do.

WHITEHOUSE: I can name some. There’s very tiny little countries that probably barely run a phone system. But in terms of our major competitors in terms of the major economic and political actors on the stage.

The ones that we’re all thinking of.

BLACK: What kind of future do we want?

What kind of internet do we want?

Do we want it over the internet? Internet, which provides tremendous economic growth, tremendous empowerment, tremendous diplomatic and political opportunities around — for billions of people around the world?

Do we want one where people can have association with other people without being spied on by their government or our government or any other government?

Is that a desirable outcome?

If so, how do we take steps in that direction?

Or do we accept the reality that all governments are going to do a maximum collection and go in the big brother direction as far as they can go, and we’re just in an arms race to do that?

I don’t think that’s a future I look forward to.

It’s difficult to want to restrain a government’s desire for more information, especially I think with our government where we have well motivated people who care about national security who really do believe in the motivation of what they’re doing. But they are zealous and effective, and they are, in fact, in a position where they are able to gather a great deal of information.

WHITEHOUSE: So you think our government security services are more dangerous to civil liberties than the government security services of China and Russia?

BLACK: Are they more interested? Much more interested in protecting civil liberties. Absolutely. No doubt about it.
(CROSSTALK)

WHITEHOUSE: (OFF-MIKE) intruding into civil liberties? You agree that our government oversight of our national security establishment is far more interested in protecting civil liberties…

BLACK: Once again, I can’t compare to other people. I don’t know the details. I certainly have a presumption about how ineffective any controls they would have. I would hope that with our constitution we would have a really effective system.

Do I think we have lived up to the best intent and good faith of our constitution with the legal structures we’ve created that allow the surveillance — no, I don’t think we’ve lived up to the principles. The core principles of the First Amendment and Fourth Amendment as faithfully as we could.

Are we better than totalitarian regimes? Of course!

That’s not a question that I think is fair.

WHITEHOUSE: You take a different view, I guess, than the courts that have overlooked this, which have not found Fourth Amendment violations in any of this.

BLACK: I think some of those decisions are — have historical position that are based — I mean, business records, for example…

WHITEHOUSE: There’s no precedent that supports your legal point of view?

BLACK: Excuse me?

WHITEHOUSE: There’s no present decision by any court that suggests that there’s been a Fourth — that this is operated in violation of the Fourth Amendment. It would take a new decision to make that conclusion that has not yet been rendered by any court.

Is that not correct?

BLACK: I’m not confident enough. I have some great counsel that work for me on all the details. I would suggest the various efforts to get those questions raised.

WHITEHOUSE: You’re the one that said this is being operated in violation of the Fourth Amendment. I’m asking you if you can cite a case that supports that proposition?

BLACK: Counsel– you know, is there a specific — I believe the FISA court made ruling that certain practices that violated their…

WHITEHOUSE: Orders. The orders.

BLACK: That’s not in the constitution.

There has been no court decision because, when the ACLU’s case, Clapper v. Amnesty, was before the Supreme Court, it found plaintiffs alleging they had likely been subjected to dragnet warrantless surveillance had no standing to challenge the FISA Amendments Act. There was no proof that in their professional work they had been under secret surveillance, as they suggested. And part of the reason they could not obtain standing was because US Solicitor General Donald Verilli misled the court about the fact that the government had a secret interpretation of the law that allowed it to collect tens of thousands of Americans’ communications.

It was fairly hostile of Whitehouse to push back against Black in more aggressive manner than he did to Alexander, Cole or Litt, but it represents the complicity within the system. Everyone is in on it, nobody is failing in their duty and, since no part of government has found it to violate the Constitution or the law, it is legal despite the fact that any objective analysis would lead one to conclude otherwise.

Finally, it is exceptionally perverse to challenge someone’s concerns about US surveillance by suggesting that person thinks the US government is worse than the Chinese government or Russian government, especially when they have made no such claim. Any politician who elevates this argument is looking out for some other special interest rather than the interests of US citizens.

The critical question is, what is the United States going to lead? A race to protect privacy or a race to see who can have the best apparatus for total information dominance?

Whitehouse would encourage the NSA to continue to expand its capabilities and power despite its effect on citizens around the world while Snowden’s act of whistleblowing forces us to confront the reality of what that future could be and do the exact opposite.