Last night, The Guardian published a secret court order that it had obtained, which shows that the National Security Agency (NSA) is currently collecting telephone call metadata on millions of Verizon customers. The scope of the collection includes
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. This Order does not require Verizon to produce telephony metadata for communications wholly originating and terminating in foreign countries. (emphasis added)
Some initially noted that this approval only covered a three month period, from April to July, and specualted, therefore, that it may be related to an investigation of the Boston bombings. However, Sen. Diane Feinstein (D-CA) confirmed today that “this is the exact three month renewal of what has been the case for the past seven years.” (emphasis added)
Thus, we can conclude that the NSA has been collecting data on tens of millions of Americans making calls “wholly within the United States.”
This fact seems to be in direct contrdiction to statements made by U.S. intelligence officials to the media, but also to members of Congress, in some cases under oath.
Asked in 2012 by Fox News about collection on American citizens, NSA Director, Gen. Keith Alexander said
“that the agency does not ‘hold data on U.S. citizens.’”
As recently as last month, Gen. Alexander told the Reuters Cybersecurity Summit, “The great irony is we’re the only ones not spying on the American people.”
But such statements go beyond those made to the media or conference goers by Gen. Alexander. They included similar statements made to Congress.
In July 2011, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) sent a letter to the NSA asking for answers about its collection of data on American citizens. The NSA’s response read, in part,
You asked whether communications of Americans have been collected… Section 702 of the FAA [FISA Amendments Act] explicitly prohibits the intentional targeting of persons reasonably believed to be located in the United States or United States persons located abroad. The Intelligence Community has put in place a variety of procedures, which have been approved by the FISA Court as required by law, to ensure that only persons reasonably believed to be located outside the United States are targeted and to prevent the intentional acquisition of any communications as to which the sender and all intended recipients are known to be located in the United States. Guidelines are also required by law to ensure compliance with other limitations on FAA collection, including the requirement that a U.S. person may not be intentionally targeted under section 702. If it is discovered that a target has entered the U.S. or is a U.S. person, he or she is promptly detargeted and reports are made as appropriate to the Department of Justice (DOJ), the Office of the Director of National Intelligence (ODNI) and the FISA Court. Moreover, when communications from persons located in the United States are collected because they are communicating with a lawful target, the privacy and civil liberty rights of U.S. persons are protected through the careful implementation of the procedures required under the FAA to ’minimize the acquisition and retention, and prohibit the dissemination“ of information about U.S. persons.’”
(Emphasis added. A PDF of the letter is available from Sen. Wyden’s Senate website, http://www.wyden.senate.gov/download/?id=3e2b2b89–83c8–4cca-bc61–7f4c13ae3ac7)
In March 2012, Rep. Hank Johnson (D-GA) asked Gen. Alexander, who was under oath, “What judicial consent is required for NSA to intercept communications and information involving American citizens?”
“Within the United States, that would be the FBI lead,” responded Alexander. “If it were a foreign actor in the United States, the FBI would still have to lead. It could work that with NSA or other intelligence agencies as authorized. But to conduct that kind of collection in the United States it would have to go through a court order, and the court would have to authorize it. We’re not authorized to do it, nor do we do it.” (emphasis added)
Finally, as recently March 12, 2013, in a hearing of the Senate Select Committee on Intelligence, Sen. Wyden had this exchange with Director of National Intelligence James Clapper, who was under oath:
Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?
Clapper: No sir.
Wyden: It does not?
Clapper: Not wittingly.
Of course, there is plenty of blame to go around. First and foremost, we should hold our elected representatives to account. The statements of Senators Feinstien and Chambliss, as well as the response from the White House, make it clear that at least some members of Congress knew about and approved of this program. As Joshua Foust has argued, “the scandal is Congress, not the NSA.”
But unelected officials must also be held accountable. The scandal is Congress and the NSA. The House Judiciary Committee is already, and rightly, investigating whether Attorney General Eric Holder lied to Congress regarding his knowledge of and involvement in a DOJ investigation of Fox News journalist James Rosen for possible Espionage Act violations. After claiming under oath that such investigations are “not something I’ve ever been involved in, heard of, or would think would be wise policy,” NBC News reported that, in fact, ”Holder personally approved a search warrant that labeled Fox News chief Washington correspondent James Rosen a co-conspirator in a national security leaks case.”
It might be time to open similar investigations of DNI Clapper and Gen. Alexander. Forbes’ Andy Greenberg has concluded, “In light of this latest leak and the surveillance it’s exposed, the NSA may have some more explaining to do.” That may be an understatement. The evidence provided above raises serious questions about whether intelligence officials wittingly–to use DNI Clapper’s word–lied to the American people and to Congress.