Transcript: Rep. Joe Heck’s Q&A with DNI James Clapper & NSA Director Gen. Keith Alexander on surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Joe Heck’s (R-Nevada) Q&A with Director of National Intelligence James Clapper and National Security Agency Director Gen. Keith Alexander on NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Joe Heck (R-Nevada):
…Certainly, in the Osama bin Laden case, a lot of accolades rightfully so were given to our military but it didn’t really recognize the years of work by those nameless, faceless individuals in the intelligence community who found, fixed, and delivered Osama bin Laden to our military. And I think people need to realize that while our military is overwhelming, that there’s a lot of support that goes on behind the scenes that’s very important to them, being able to execute their missions.

Gen. Alexander, can you tell me what the operational impact of increasing the standard of proof for obtaining an order for the collection of business records under FISA would be? For instance, instead of a reasonable articulable suspicion, if it was something like specific, articulable and material? What would the operational impact be of limiting business record FISA collection to only known specific foreign agents of powers, groups, or individuals and if it was only limited to terrorism inquiries?

NSA Director Gen. Keith Alexander:
I’m not sure how to answer that, but I’m going to try and then I’m going to defer to the Deputy Attorney General. Because from my perspective, I think the issue is if we go from what we call a reasonable articulable suspicion to a probable cause standard, then you’d have to have a lot more information to show that this person is doing X before you go in. Right now, we have to show that a reasonable person, which is a lower standard, that any reasonable person would agree this person is doing something associated with Al Qaeda as a threat to the homeland. I think that probable cause raises it to a standard that goes up. And I’m going to defer to a lawyer to answer that.

Deputy Attorney General James Cole:
I think where you come to on that this – the type of collection that we’re doing under 215 doesn’t implicate constitutional standards. That’s why you don’t need the probable cause finding because it is a much higher standard and you have to have the court approval for each individual use of that warrant to get content because that’s what you’re doing in those instances. And you need to show very specifically that the person is an agent of a foreign power or is a foreign power themselves or a terrorist which can be included in that and that the collection you’re going to get is going to lead you to foreign intelligence information within that definition, which includes terrorism, weapons of mass destructions, things of that nature.

Under 215, it’s really a very preliminary type of information that we get. It’s done to allow us to find out whether there are just certain connections without even knowing specifically who the people are so that we may be able to develop a further profile to get to the point where we could develop probable cause. So if you require too many of these probable cause type requirements in this early stage, it would probably unusable because you’ll never get that much information. This is one of the tools we use to start to build the probable cause information; it’s not the end of the chain.

Rep. Joe Heck (R-Nevada):
So with that answer, then Director Clapper, would you say if we did go that route whether by policy or statute that that would put our nation at risk?

Director of National Intelligence James Clapper:
Yes, sir, because it would essentially neuter 215. If you raise that higher evidentiary bar to probable cause, that’s a much, much higher standard and all you’re looking – 215 is used for now essentially investigatory leads that could lead to a probable cause. So by raising that standard, it would essentially in my opinion, neuter 215.

Rep. Joe Heck (R-Nevada):
And Gen. Alexander, you mentioned that there were no willful violations of 215, 702, a dozen under 10333. But what about what we’ve heard a lot about in the media the inadvertent violations? Can you add some clarifications as far as inadvertent violations?

NSA Director Gen. Keith Alexander:
Congressman, thanks. Because there was a report that talked about 2,776. And I do think it’s important for the American people so I actually have some details on that.

First, when you think about the 2,776 and what we’re asked to track, we actually go out and track every incident that we have. And an incident in our case could be not necessarily a privacy violation on the U.S. person but in most cases, it’s on what we’ll call as a “roamer” or a phone that we’re tracking that is overseas. If it comes into the United States, it changes the authority upon we are authorized to collect on that phone. And so we have to tell the court and or Justice if we have just such a roamer coming into the United States. About 75% – a little over 2,000 of those – were roamers that were not even violations. They were things that we were tracking. To be in violation, it would be that we identified the roamer and we didn’t stop collecting. This gets to the gap that the committee is currently working on.

So the vast majority of these incidents involve foreign persons. When I say vast majority – 90% plus – involves foreign persons.

For the smaller number that did involve a U.S. person, a typical incident involves a person overseas involved with a foreign organization who is subsequently determined to be a U.S. person or a green card holder. And as a dual citizen, we find that out from some means down the road that this person X is actually a U.S. citizen or a dual citizen and we have to report that to the court and to all the folks here as a violation. We track that, we stop collection, and we have to go back the other route to get authority to collect.

So that’s the bulk of what we see even if, you know, when we started out all the indications are that this is a foreign person.

Then there are others that we make. There are small cases where we perhaps will enter in a wrong number – a typographical error. And that transposed number we begin collection, and we give that to the court wrong. That’s a violation. And at times we make a mistake.

And I just would say, you know, for myself if you think about typing in your password, it probably never happens to you but for me maybe once a day, I type in the password wrong; it kicks me out. If we had done that and went through that, it would have been a violation.

So if you think about it, it’s just a few percent that we do.

Chris, do you want to add to that?

NSA Deputy Director Chris Inglis:
I’ll just to that – of course, what we’re talking about is the leaked report that was the internal compliance report, which described across the year 2012 on an annualized basis 2,776 incidents that was immediately described in some press quarters as thousands of violations and privacy intrusions…

As Gen. Alexander explained, 75% of those were roamers. You can’t anticipate. They don’t check with us before they move from one terrorist area to perhaps the United States. When they join something, they create a U.S. person situation. So we do exactly the right thing when we detect that. That’s not a compliance violation as much as it’s a transition from one authority to the other we have to handle exactly right.

But the remaining errors, about 700 in all, the remaining 25% in that pile, were errors as we formed a collections selector, as we queried the database, as we disseminated something. None of the 2,776 in that report were willful; they were all human error. But if you took the remaining 700 and you said let’s ascribe those to analysts at the National Security Agency and you said everybody’s got to take their fair share of this error, it turns out that the average analyst at NSA would make a mistake every 10 years. All right? That’s an admirable error rate. We think one is too many; that’s why we track this. We track this so we can drive this down to zero. But we’re pretty proud of our rigor and discipline in tracking these things.

We would take some exception to those who would describe this as intentional violations of privacy or for that matter violations of privacy at all…

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