NSA surveillance is completely legal, says top intel lawyer

The top lawyer for the Director of National Intelligence on Friday defended two controversial data-gathering programs run by the National Security Agency, saying they are in complete accordance with the law. 

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But Robert Litt, the DNI’s general counsel, said he regrets that a public conversation about their largely classified details did not occur before details were leaked by former defense contractor Edward Snowden. 

“Some people claim that these disclosures were a form of ‘whistle-blowing,” Litt said in a speech at the Brookings Institution.

“But let’s be clear, these programs are not illegal. ... All three branches of government knew about these programs, approved them, and helped to ensure that they complied with the law.”

“This discussion can, and should, have taken place without the recent disclosures, which have brought into public view the details of sensitive operations that were previously discussed on a classified basis with the Congress,” he said.

The head intelligence lawyer said that while America’s enemies have definitely taken notice of the leaks and the program details, “only time will tell the full extent of the damage caused by the unlawful disclosures of these lawful programs.”

Litt laid out in considerable depth how the programs — which he said were authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) and Section 215 of the Patriot Act — operate, as well as the checks put in place by Congress to safeguard privacy rights.

Section 215 allows for intelligence officials to get, with a court’s approval, phone records of Americans in metadata form, such as the phone number placing the call and the number being called, the date and time of the call, and the length of the call.

Section 702 allows officials to get, again with a court’s approval, the details of phone and email conversations being conducted by foreigners suspected of carrying out or aiding terrorist plots.

Litt emphasized that U.S. intelligence analysts and investigators “don’t randomly target email addresses or collect all foreign individuals’ emails under Section 702.”

“We target specific accounts because we are looking for foreign intelligence information,” he said. “And even after a target is approved, the court-approved procedures require NSA to continue to verify that its targeting decision is valid based on any new information.”

As NSA head Gen. Keith Alexander did, Litt referenced 54 cases in which Section 702 had been successfully used to help investigate possible terror plots and, in some cases, thwart them. 

Litt also addressed the overwhelming privacy concerns that have arisen as a result of the leaks. He argued that people care more about whether the government has access to their private data than if a private telephone or Internet company does, because of the potential for the government to possibly use that data for malicious reasons.

“Unlike a phone company, the government has the power to audit our tax returns, to prosecute and imprison us, to grant or deny licenses to do business, and many other things,” said Litt. “And there is an entirely understandable concern that the government may abuse this power.”

And that is why, Litt said, the government has tried to guard against abusing private information by requiring a court’s approval before officials can access a person’s private data.

“We don’t simply set out a bunch of rules and trust people to follow them,” he said. “There are substantial safeguards in place to ensure that the rules are followed.”

Additionally, courts have decided that the government's seizure of a person's private information from a third party, such as a phone company, does not violate their Fourth Amendment rights, Litt said. 

Litt also stressed that the documents Snowden was able to access, and subsequently leak to the press, were available to many employees and contractors working for the NSA, but that the private data used in investigations is kept in a much more secure database that has never been breached by anyone unauthorized to use it.