The Obama administration argues that surveillance is a vital tool W.H.: Obama 'welcomes' surveillance debate

President Barack Obama is looking forward to national debate over surveillance policies triggered by the disclosure Wednesday of a highly classified National Security Agency program to obtain records of telephone calls made by million of Americans, the White House said Thursday.

White House Spokesman Josh Earnest told reporters traveling with Obama on Air Force One that the discussion about balancing national security and individual privacy is a valuable one.


“The president welcomes the discussion of the trade-off between security and civil liberties,” Earnest said. “The close examination of some of these complicated issues could cause people to arrive at differing opinions…. The president welcomes that debate. He has his own ideas, he’s presented them.”

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Earnest declined to comment on classified matters, but noted that the order to telecom giant Verizon that was obtained Wednesday by Britain’s Guardian newspaper does not authorize listening to anyone’s calls. The White House spokesman also said the program has been effective at countering terrorist threats.

House Intelligence Committee Mike Rogers (R-Mich.) was more specific, saying the call tracking had “thwarted” a specific terrorist incident in the United States.

“Within the last few years, this program was used to stop a terrorist attack in the United States,” Rogers told reporters Thursday. “We know that. It’s important. It fills in a little seam that we have, and it’s used to make sure that there’s not an international nexus to any terrorism event that they may believe is ongoing in the United States.”

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Attorney General Eric Holder emphasized that the administration had kept federal lawmakers fully informed about the program.

“Members of Congress have been fully briefed as these issues, these matters have been underway,” Holder said at a Senate hearing. He said he was “not really comfortable in saying an awful lot more than that” in an unclassified setting.

Senate Appropriations Committee Chairwoman Barbara Mikulski (D-Md.) said she had doubts about claims lawmakers had been kept in the loop. “This ‘fully briefed’ (claim) is something that drives us up the wall…. ‘Fully briefed’ doesn’t mean we know what’s going on,” she said, urging a classified hearing or briefing that all senators could attend.

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And Sen. Mark Kirk (R-Ill.) said he was concerned that data on calls by members of Congress and Supreme Court justices could have been swept up in the program, though Holder said there was “no intention to do anything of that nature.”

Elsewhere on Capitol Hill, the top two leaders of the Senate Intelligence Committee said Thursday that the widespread monitoring of Verizon phone calls made in the United States has been going on for years, and that Congress is regularly briefed on it.

Sens. Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.) also defended the National Security Agency’s request to the company for all the metadata about phone calls made within and from the United States.

“As far as I know, this is the exact three-month renewal of what has been in place for the past seven years,” Feinstein said. “This renewal is carried out by the [Foreign Intelligence Surveillance Court] under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress.”

Chambliss said the report in the Guardian Wednesday was “nothing new.”

“This has been going on for seven years,” he said. “…every member of the United States Senate has been advised of this. To my knowledge there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years.”

The Obama administration is defending the program, arguing that the policy is a vital tool in monitoring terrorists and has the approval of “all three branches of government,” according to a senior administration official.

“On its face, the order reprinted in the article does not allow the government to listen in on anyone’s telephone calls,” said the official, who asked not to be named. “The information acquired does not include the content of any communications or the name of any subscriber. It relates exclusively to metadata, such as a telephone number or the length of a call.”

Still, the official declined to confirm the authenticity of the classified Foreign Intelligence Surveillance Court order published Wednesday by Britain’s Guardian newspaper, which described a wide sweep of Verizon calls both domestic and international by Americans by the National Security Agency.

“Information of the sort described in the Guardian article has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” the official said.

Several news outlets reported in 2006 that the Bush administration was compiling a massive database of Americans’ long-distance and international calls. Some telecom companies denied they were taking part in the program, but Bush administration officials never denied the broad outlines of the story. Some officials pointed to court rulings saying Americans had no privacy interest in information such as the numbers dialed on a phone.

It had not previously been confirmed that the Obama administration was conducting similar broad surveillance of calling patterns. However, in 2008 Congress amended the Foreign Intelligence Surveillance Act to give explicit legal authority to aspects of the program President George W. Bush initiated without requiring a future blessing from lawmakers.

Then-presidential candidate Barack Obama opposed the legislation during his primary battle with Hillary Clinton. However, he reversed course shortly after clinching the nomination and voted for a modified version of the bill.

Some lawmakers — including Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), who both serve on the Intelligence Committee — have long contended that the federal government is using orders from the FISA court to engage in surveillance that would shock and anger many Americans.

The Guardian noted in its report that it was unclear whether the order represented a one-time occurrence, or merely a routine renewal of an existing request.

In a Senate floor speech in December, Wyden hinted at classified information he had received but could not share due to Senate rules that indicated the law “on Americans’ privacy has been real, and it is not hypothetical.”

“When the public finds out that these secret interpretations are so dramatically different than what the public law says, I think there’s going to be extraordinary anger in the country,” he told The Huffington Post the following month.

On Wednesday, Udall reiterated his discomfort with the FISA court’s activities.

“While I cannot corroborate the details of this particular report, this sort of wide-scale surveillance should concern all of us and is the kind of government overreach I’ve said Americans would find shocking,” Udall told POLITICO. “As a member of the Senate Intelligence Committee, it’s why I will keep fighting for transparency and appropriate checks on the surveillance of Americans.”

Both Wyden and Udall have repeatedly pressed the executive branch to be more forthcoming about how the law is being used. The senators indicated that one of their concerns was the specific legal provision used to obtain the Verizon order.

In a 2011 letter , the Justice Department defended its use of the provision, saying it was similar to the way prosecutors could use a grand jury subpoena to get information in a criminal case. However, the DOJ acknowledged that the “factual context” of the way it used the law for “classified intelligence collection” was not the same as in criminal cases.

The leaked order appears to be based on a provision in the Patriot Act that allows the government to collect “tangible things,” such as business records, during investigations related to foreign intelligence or terrorism.

The Justice Department said in the 2011 letter that members of Congress were “fully and repeatedly briefed” about sensitive intelligence programs taking place under that legal provision, known as Section 215. “The Intelligence and Judiciary Committees have been briefed on those operations multiple times and have had access to the classified FISA Court orders and opinions relevant to the use of Section 215 in those matters,” then-DOJ legislative affairs chief Ron Weich wrote to Wyden.

House Armed Services Committee lawmakers said late Wednesday that they had not seen the Guardian report, and so did not want to comment on it — but a GOP committee aide said the leak of the document is problematic.

“If the story proves accurate, we would have very serious concerns about the magnitude of the leak involved,” the aide said.

Civil liberties advocates immediately decried the surveillance revealed on Wednesday.

“From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which millions of innocent people have been put under the constant surveillance of government agents. It’s analogous to the FBI stationing an agent outside every home in the country to track who goes in and who comes out,” Jameel Jaffer of the American Civil Liberties Union said in a statement. “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”

Trevor Timm, a digital rights analyst at the Electronic Frontier Foundation, called the order “shockingly broad.”

“Not only are they intercepting call data into and out of the country, but they are intercepting all call data in the United States, which goes far beyond what the FISA Amendments Act allows,” Timm said.

“This is an abuse of the Patriot Act on a massive scale,” said Gregory Nojeim, senior counsel at the Center for Democracy and Technology. “Since the law requires that the telephone records sought be relevant to an investigation, it appears that the FBI and the NSA may have launched the broadest investigation in history because everyone’s telephone calls seem to be relevant to it.”

“In digital era, privacy must be a priority,” former Vice President Al Gore said on Twitter Wednesday. “Is it just me, or is secret blanket surveillance obscenely outrageous?”

The “top secret” order issued in April by a judge on the Foreign Intelligence Surveillance Court at the request of the FBI instructs the telecommunications giant Verizon to provide the NSA with daily reports of “all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

The order, issued at the request of the FBI on April 25 and effective through July 19, says explicitly that it does not seek information on the content of calls or on who owns the phone lines making the calls. The order says that no one is allowed to disclose the existence of the phone records search without permission of the FBI director.

“No person shall disclose to any other person that the FBI or the NSA has sought or obtained tangible things under this Order” beyond individuals, including attorneys, needed to help comply with the order, or those informed by the FBI director. “Any person making or intending to make a disclosure … shall identify to the (FBI) director or such designee the person to whom such disclosure was made prior to the request.”

The order doesn’t give the government access to the contents of the phone calls, but the call records themselves are enough to paint a detailed picture for law enforcement. Metadata like call duration, phone numbers, and unique ID numbers, for example, are easily analyzed by government computers.

“The thing you have to understand is how incredibly revealing that metadata can be when you have a data set that size,” Cato Institute fellow Julian Sanchez said, adding that the scope of the court order was surprising even for those who closely follow surveillance practices.

He added that information covered by the order is likely to include data identifying a caller’s general location based on which cellphone towers were used, even though the court directive doesn’t explicitly mention that category.

Verizon spokesman Ed McFadden declined to comment on the report.

Alex Byers, Eric Engleman, Reid J. Epstein, Burgess Everett, Donovan Slack, Juana Summers and Brooks Boliek contributed to this report.

CORRECTION: Earlier versions of this story referred incorrectly to the year of the Justice Department’s letter to Wyden about certain surveillance practices. It was sent in October 2011.

CORRECTION: Corrected by: Julie Xie @ 06/06/2013 11:14 AM CORRECTION: Earlier versions of this story referred incorrectly to the year of the Justice Department’s letter to Wyden about certain surveillance practices. It was sent in October 2011.