NSA Panel Member Recommends Increased Data Collection

Former CIA chief says controversial “bulk” collection of data should be expanded to include email, and could prevent the next 9/11.

Former Acting CIA Director Michael Morell at the Capitol on November 15, 2012 in Washington, DC. 
National Journal
Michael Hirsh
Dec. 22, 2013, 10:06 a.m.

Mi­chael Mo­rell, the former act­ing dir­ect­or of the CIA and a mem­ber of Pres­id­ent Obama’s task force on sur­veil­lance, said in an in­ter­view on Sunday that a con­tro­ver­sial tele­phone data-col­lec­tion pro­gram con­duc­ted by the Na­tion­al Se­cur­ity Agency should be ex­pan­ded to in­clude emails. He also said the pro­gram, far from be­ing un­ne­ces­sary, could pre­vent the next 9/11.

Mo­rell, seek­ing to cor­rect any mis­per­cep­tion that the pres­id­en­tial pan­el had called for a rad­ic­al cur­tail­ment of NSA pro­grams, said he is in fa­vor of re­start­ing a pro­gram the NSA dis­con­tin­ued in 2011 that in­volved the col­lec­tion of “metadata” for In­ter­net com­mu­nic­a­tions. That pro­gram gets only a brief men­tion in a foot­note on page 97 of the task-force re­port, “Liberty and Se­cur­ity in A Chan­ging World.” “I would ar­gue ac­tu­ally that the email data is prob­ably more valu­able than the tele­phony data,” Mo­rell told Na­tion­al Journ­al in a tele­phone in­ter­view. “You can bet that the last thing a smart ter­ror­ist is go­ing to do right now is call someone in the United States.”

Mo­rell also said that while he agreed with the re­port’s con­clu­sion that the tele­phone data pro­gram, con­duc­ted un­der Sec­tion 215 of the USA Pat­ri­ot Act, made “only a mod­est con­tri­bu­tion to the na­tion’s se­cur­ity” so far, it should be con­tin­ued un­der the new safe­guards re­com­men­ded by the pan­el. “I would ar­gue that what ef­fect­ive­ness we have seen to date is totally ir­rel­ev­ant to how ef­fect­ive it might be in the fu­ture,” he said. “This pro­gram, 215, has the abil­ity to stop the next 9/11, and if you ad­ded emails in there it would make it even more ef­fect­ive. Had it been in place in 2000 and 2001, I think that prob­ably 9/11 would not have happened.”

The pres­id­en­tial pan­el’s 304-page re­port touched off a fresh back­lash against NSA sur­veil­lance pro­grams, com­ing only days after U.S. Dis­trict Judge Richard Le­on ruled that the agency’s reg­u­lar col­lec­tion of most Amer­ic­ans’ phone re­cords was prob­ably un­con­sti­tu­tion­al. The pan­el, which con­sisted of Mo­rell; former coun­terter­ror­ism ad­viser Richard A. Clarke; Uni­versity of Chica­go law pro­fess­or Geof­frey Stone; Peter Swire, an ex­pert in pri­vacy law at the Geor­gia In­sti­tute of Tech­no­logy; and former Obama ad­min­is­tra­tion reg­u­la­tion czar Cass Sun­stein, con­cluded that the Sec­tion 215 pro­gram needed to be sub­stan­tially reined in. It said the tele­phone metadata col­lec­tion — in­volving the track­ing of num­bers of calls and where, when and to whom they’re made, without ex­amin­ing con­tent — should be taken out of the hands of the gov­ern­ment and left to the ser­vice pro­viders, or to a private “third party,” and sub­jec­ted to in­di­vidu­al court or­ders.

“Al­though this pro­cess might be less ef­fi­cient for the gov­ern­ment, NSA Dir­ect­or Gen­er­al Keith Al­ex­an­der in­formed the Re­view Group that NSA it­self has ser­i­ously con­sidered mov­ing to a mod­el in which the data are held by the private sec­tor,” the re­port said.

But Mo­rell em­phas­ized in a sep­ar­ate ap­pear­ance on CBS’s Face the Na­tion on Sunday that these pro­ced­ures would slow down ne­ces­sary data col­lec­tion by only a few days, and that the pan­el has called for an emer­gency ex­cep­tion that would al­low the NSA to oc­ca­sion­ally by­pass a For­eign In­tel­li­gence Sur­veil­lance Court judge.

The task-force re­port also de­livered an en­thu­si­ast­ic en­dorse­ment of an­oth­er email col­lec­tion pro­gram un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, which al­lows the mon­it­or­ing of sus­pi­cious emails abroad. After the pan­el re­viewed 54 coun­terter­ror­ism in­vest­ig­a­tions since 2007 “that res­ul­ted in the pre­ven­tion of ter­ror­ist at­tacks in di­verse na­tions and the United States,” it con­cluded that “in all but one of these cases, in­form­a­tion ob­tained un­der Sec­tion 702 con­trib­uted in some de­gree to the suc­cess of the in­vest­ig­a­tion.”

The dis­con­tin­ued pro­gram for col­lect­ing metadata on In­ter­net com­mu­nic­a­tions that Mo­rell was re­fer­ring to was ori­gin­ally sus­pen­ded for “com­pli­ance” is­sues in 2009, the re­port notes, after “it came to light that NSA had in­ad­vert­ently been col­lect­ing cer­tain types of in­form­a­tion that were not con­sist­ent with the FISC’s au­thor­iz­a­tion or­ders.” Al­ex­an­der re­star­ted that pro­gram in 2010 but then let it ex­pire at the end of 2011 be­cause “for op­er­a­tion­al and tech­nic­al reas­ons, the pro­gram was in­suf­fi­ciently pro­duct­ive to jus­ti­fy the cost,” the re­port says, adding that “the pos­sib­il­ity of re­vis­ing and re­in­sti­tut­ing such a pro­gram was left open.” The re­port says that if the email metadata pro­gram is star­ted up again, it “should be gov­erned by the same re­com­mend­a­tions we make with re­spect to the sec­tion 215 pro­gram.”

Mo­rell and oth­er in­tel­li­gence ex­perts be­lieve that the new and var­ied threats from ex­trem­ist and Qaida-linked groups from Syr­ia to the un­gov­erned areas of Afgh­anistan jus­ti­fy con­tinu­ing such mass sur­veil­lance pro­grams.