ACLU head: Data leaker did country ‘a service’
ASPEN — Edward Snowden “did this country a service” in revealing government mass-surveillance efforts that are now coming under public scrutiny, the executive director of the American Civil Liberties Union said Thursday.
“I will say I am personally grateful that we are now having the debate we should have had long ago,” Anthony Romero said during this week’s Aspen Security Forum, put on by the Aspen Institute.
That debate was taken up in earnest by a panel that focused on the tensions between security and liberty, and included Raj De, general counsel for the National Security Agency. Snowden, who worked for an NSA contractor, leaked word of the agency’s mass collection of telephone “metadata.”
De noted that the data consists of things such as numbers dialed, date and time of call and duration.
“There’s no names associated with the numbers that are submitted to the FBI and NSA,” he said.
The monitoring doesn’t include the locations where calls are made or the content, he added. De said the program allows aggregation of phone companies’ data in short order, versus trying to obtain it on an as-needed basis.
He added, “Today there’s no obligation for any of these companies to hold onto their data.” While they do it for business purposes, they could always stop doing so, he said.
De declined to say Thursday what action the NSA might be pursuing in connection with a court order that requires data disclosures by Verizon and expires today.
But he added, “I think there will be something to say” today.
Romero noted that the Patriot Act standard on which the phone surveillance program is based requires relevance to security investigations.
“It defies the knowledge or the understanding of the word relevant when you’re collecting every single phone call,” he said.
He said the data being compiled “can give you a very full picture of what my day is like.”
Jane Harman, who while in Congress served on the House Intelligence Committee and then on the Homeland Security Committee, said she believes the amount of metadata being collected may be excessive, and it and other security-related data-collection provisions are due for review.
“Do I think that maybe now that there’s a much more public debate, Congress should narrow some of these provisions? Yes,” she said.
She predicted that Congress will tighten standards for going before the Foreign Intelligence Surveillance Court for search warrants.
“I think we need a national debate about this and we’re having one right now,” she said.
De said the current perception is that the court rubber-stamps most surveillance requests.
“There is no way that that is an accurate representation,” he said.
He said the challenge is how to improve public confidence in a process he thinks is working fairly well.
Romero said one problem is that the statistics on the court’s approvals aren’t public.
Jeh Johnson, until recently general counsel for the Department of Defense, took issue with Romero’s contention that the communications surveillance is illegal, violating the Fourth Amendment restrictions on searches and seizures.
“In the opinion of all three branches of government, the program is not illegal,” he said.
But he added, “Clearly there is an expectation of privacy in content, for which you need a warrant” to conduct a search.
Regarding Snowden, he said, “I think it’s a bad message for us to send to people who are taking the law into their own hands that they are doing a public service. … Courts are where these debates belong.”
Harman called Snowden narcissistic, but added, “A lot of Americans support what he did. He should come back and face a fair trial.”
Neal MacBride, U.S. attorney for the Eastern District of Virginia, has been involved in several investigations into security leaks, and has gone after media phone and email records in the process.
He said Thursday he doesn’t think the Justice Department has gone overboard in such efforts.
He said the department has pursued perhaps a half-dozen cases of unauthorized disclosures in the last five years.
“The Justice Department does not pursue whistleblowers,” he said.
He said there’s no federal statute criminalizing release of classified information in and of itself. In order to be prosecuted, a release needs to involve information critical to national defense, or that can benefit a foreign government or hurt the United States, he said.
American use of drone strikes also came up in Thursday’s discussion. Johnson drew headlines for having observed, after the United States conducted a strike that killed civilians in Yemen, that if he were Catholic he’d have to go to confession.
Johnson took note of an op-ed piece Thursday by Nasser al Awlaki, whose son Anwar, and whose grandson, both U.S. citizens, were killed in American drone strikes.
“You read an op-ed like that and you get a pit in your stomach and you read it with a heavy heart. If you don’t then you should not be involved in making these decisions,” Johnson said.
He also spoke in favor of declassification of as much as possible of a Senate Intelligence Committee report on U.S. interrogation methods during the war on terror. He said he doesn’t think legal reviews to authorize those interrogations were done in the proper way.
“I think that the senior lawyer for the Department of Defense should have been more personally involved in conducting those reviews,” he said.
Harman said as the war on terrorism evolves, the United States needs to evaluate its anti-terrorism tactics to determine what is appropriate, who the enemy is, and “what does the United States stand for.”