3:06pm

Thu January 9, 2014
The Two-Way

NSA Says It Would Welcome Public Advocate At FISA Court

Originally published on Fri January 10, 2014 12:45 pm

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The National Security Agency "would welcome" the creation of a public advocate's position at the court that oversees its electronic surveillance programs, said its outgoing deputy director.

John C. "Chris" Inglis, who retires Friday after more than seven years as the NSA's No. 2, told Morning Edition host Steve Inskeep that "I would only put the caveat on there that it needs to be operationally efficient."

"So, let's say that I'm authorized to target the head of al-Qaida worldwide and I'm actively doing that," he continued. "I'm trying to figure out what communication services — selectors — that person is using. If at every moment in time somebody had to authorize me to put the next selector on — 'He just changed his email address, can I put that on?' — if that's where the advocate stands in, that's operationally not terribly efficient.

"But if there's going to be some novel interpretation of the law — if there's going to be some authority that's going to be applied as an extension of the law [that] might say, 'I've got a different view,' we'd welcome that."

The NSA would also welcome a public advocate's presence in the room each time it seeks a warrant, Inglis said, if the process can be made "operationally efficient."

The creation of a public advocate position inside the Foreign Intelligence Surveillance — or FISA — court that oversees the NSA is among several reforms that the President's Review Group on Intelligence and Communications Technologies has suggested. The recommendations followed former NSA contractor Edward Snowden's leaks about the agency's surveillance programs.

The idea is that the advocate could raise objections if it appears the NSA might be about to violate someone's civil or privacy rights.

President Obama has been meeting with congressional leaders and will talk with technology company executives on Friday as he considers the panel's recommendations. The president is expected to announce his decision on what changes, if any, will be made to U.S. surveillance programs later this month.

Snowden's revelations have lifted the veil on many secrets about the NSA's massive electronic surveillance efforts, which the agency says are aimed at the telephone and Internet communications of suspected terrorists overseas — but have also swept up data about the phone calls and emails of world leaders and average Americans.

In the NPR interview, Inglis did not dispute an estimate that the agency had examined electronic communications more than 44 million times in 2012. But he said that does not mean the NSA spied on 44 million people, since many targets of surveillance had multiple phone numbers or email accounts, which the agency examined multiple times.

"A particular terrorist might have dozens ... hundreds of these selectors," he said.

Inglis made the case for why the NSA needs to gather so much information. "If you're looking for a needle in a haystack, you need the haystack," he said.

He also said the NSA is open to another potential change that has been suggested — having the data it wants collected stored by phone companies and other tech firms, not by the agency itself, and only made available after warrants are issued by the FISA court. "We are considering that," he said, although the decision about such a change will be made by policymakers, not the agency.

During the conversation, Inglis also said that in hindsight, the NSA should have disclosed at least some details about its surveillance programs before Snowden's leaks hit front pages last June.

But Snowden did not do the NSA any favor by spilling its secrets and sparking a national debate, Inglis said. He likened what Snowden did to "somebody who burned my house down [and] has given me an opportunity to perhaps build it in a way that I would prefer."

Much more from the conversation with Inglis is scheduled for Friday's Morning Edition.

Related posts:

-- The Case Against Clemency: Expert Says Snowden's Leaks Hurt Security

-- The Case For Clemency: Expert Says Snowden Deserves A Pass

-- Tech Execs Complain About NSA During Obama Meeting

-- Judge Rules That NSA Collection Of Phone Data Is Lawful

-- Judge Rules Against NSA Bulk Collection Program

Copyright 2014 NPR. To see more, visit http://www.npr.org/.

Transcript

DAVID GREENE, HOST:

This is MORNING EDITION, from NPR News. I'm David Greene.

STEVE INSKEEP, HOST:

And I'm Steve Inskeep. We walked, this week, into a vast building covered in reflective glass, the headquarters of the National Security Agency. We met there with John C. "Chris" Inglis. He's the agency's No. 2, its top civilian beneath the general who runs it, Keith Alexander. Inglis was in his final week at the NSA.

Do they have exit interviews for people who are leaving the National Security Agency?

CHRIS INGLIS: They do.

INSKEEP: And if he's asked in his exit interview what might change at the NSA, Chris Inglis says he'll suggest the NSA be more transparent. He spent his final months on the job defending the agency from the revelations by former NSA contractor Edward Snowden. Snowden disclosed the agency was gathering phone records of millions of Americans. Inglis says the revelations came out in a way that unfairly stained his agency. And that raises a question about running a spy agency in a democracy.

In retrospect, do you wish that some years ago, this agency had made some effort to disclose this program in a way that the public could debate it, in a way that it could be looked at fairly, from your point of view?

INGLIS: In hindsight, yes. In hindsight, yes. But if you had asked me on June 4th, say, just before all of this broke; if you said, are you concerned, Chris Inglis, about the 215 Metadata Program? I would have emphasized the controls that are imposed on it. And I would have described the participation of three branches of government in it. And I would have thought - I think naively, at this point in time - that it was sufficient that those three branches of government had stood in the shoes of the American public and made that determination

I think that what we found in the summer of 2013 is that it was insufficient.

INSKEEP: Now, the agency has been forced to defend what it is, and what it does. Chris Iglis' long agency career goes back to when NSA employees barely admitted the agency existed. Today, it's so different that Inglis recently gave a speech at the University of Pennsylvania.

(SOUNDBITE OF ARCHIVED RECORDING)

(APPLAUSE)

INGLIS: Thanks very much. If anybody hasn't turned their cellphone yet - off, just hold up your hand. I'll turn that off for you now.

(AUDIENCE LAUGHTER)

INGLIS: I'm just kidding. I'm just kidding.

INSKEEP: Thousands of military personnel and civilians work for this agency around the world. Their job is listening to terrorists or hostile governments, and protecting U.S. government communications. The NSA is not supposed to listen to Americans without a warrant from a special court. But after 9/11, the agency began gathering years' worth of American phone records.

The metadata program, for example - has it been worth it, given that part of the cost of it is that it got disclosed eventually?

INGLIS: I think so. Well, that's a great question that we've been debating as a nation for the better part of six months. You're probably quite familiar with the testimony that I, General Alexander and others have made before Congress about the number of plots that have been thwarted by the totality of intelligence capabilitiesthat NSA brings to bear in various venues. We've described that as 54 total plots.

INSKEEP: Fifty-four plots disrupted. But when we began to pick at that number, it became smaller. The information on the vast majority of those plots was gathered outside the metadata program. Inglis insists the phone records are still important.

INGLIS: And so it's, in a mosaic, useful to essentially inform other tools. But it's not a silver bullet in and of itself

INSKEEP: But this is what I want to go through. You initially said the agency said, and your boss Gen. Alexander said, 54 plots were disrupted. What you've just affirmed for me is that the vast majority of those involved Prism, a different program.

INGLIS: That's correct.

INSKEEP: And there may only be one case that you can point to, where you feel that the metadata program was significant. And in fact, the President's Commission - which looked into the NSA's operations, of course - didn't even endorse the one. They said it was hard to find any cases. And yet there's been this tremendous political cost from its disclosure. That's why I ask again, if it was worth it?

INGLIS: I do think so. Because I don't know that I'd want to go back in time and say that I would run the risk of not uncovering the one plot that I did, or to not have that tool that's an insurance policy to try to find something that crosses from a foreign terrorist plot to something that might then be inserted into the United States as an activity here.

There are other implementations of the 215 Program. The government doesn't need to hold the data; it could be held by a third party. You could compel others to essentially do the kind of search that today, NSA is authorized and charged to undertake. But the question remains as to whether you're going to have a capability to find something that is the connection of a foreign plot to a domestic extension of that plot.

INSKEEP: You just mentioned other ways to do this program. Are you now, as an agency, considering those other ways? Just leaving the information with the phone company, for example, and picking it up through a warrant from the foreign intelligence surveillance court, when you need it?

INGLIS: Certainly. We are open to other limitations. I think...

INSKEEP: So you are considering that?

INGLIS: We are considering that. But I think that we're not the policy agent that would decide whether or not we would then embrace one of those other choices. We would be a component of executing that choice.

INSKEEP: If the president or Congress changed the program, Inglis contends, it still needs to be efficient. It also has to protect Americans' privacy, which the agency insists it has always tried to do with the vast piles of records it collects.

INGLIS: I think most Americans would be surprised at how infrequently we actually look at that data. In all of 2012, there were less than 300 locations where we said what we had was reasonable, articulable suspicion - that's the legal standard that's applied here - to query that database; less than 300 times.

INSKEEP: Although it is interesting, though, the President's Commission, when it investigated this issue and wrote about it, said that yes, 288 times - I think - in 2012, you went to the metadata for a particular phone number. But then you're allowed to look at phone numbers that were called from that number...

INGLIS: That's true.

INSKEEP: ...and then numbers that were called from those numbers. And they outlined a scenario where one data request might cause you to look at a million phone numbers.

INGLIS: It could. But in all of 2012, we actually looked at 6,000.

INSKEEP: Six thousand numbers, is the number in 2012.

INGLIS: Six thousand numbers is what we actually then touched, all based upon the seeds that started with less than 300.

INSKEEP: If it's not clear by now, Chris Inglis lives in a world of numbers, at an agency filled with computer experts. Far more of those numbers have become public than the agency ever intended. Last summer, Edward Snowden disclosed an internal agency audit. Analysts just at NSA headquarters committed about 2,700 violations of the rules in a single year. Inglis has suggested only 711 violations were of real concern. And many of them were typos - entering the wrong phone number, say, in search of another,

He says that represents a tiny percentage of his analysts' work. Those numbers got us thinking, though, about just how vast the agency surveillance operations really are.

INGLIS: The accuracy rate at NSA is 99.99984 percent - which is a pretty good record.

INSKEEP: I was fascinated by that math; that 711 errors in a year means that 99.99984 percent of the time, you're right. And so I started doing the math and reversed it; tried to figure out well, how many communications are they monitoring, then? And when I did the math, I concluded that that means that you're monitoring - I wrote down - 44,437,500 communications in a year.

You're nodding - that's about the scale of your activities.

INGLIS: That's what that math would lead you to. But actually, it's not that simple. So let's say I'm interested in a particular terrorist. That individual might have dozens; might have, across a given year, hundreds of selectors. I'd kind of pick up and drop telephones - you know, like it's fast food.

INSKEEP: And the agency may look at each communication many times. In this way, Inglis suggests, the NSA is not monitoring so many individual people, though he never denied analyzing tens of millions of communications. The agency faces pressure now to accept reforms. The special court that issues warrants to monitor Americans operates in secret, and that presidential commission called for a public advocate to operate within the court as a kind of defense lawyer. Chris Inglis told us, quote, "We would welcome that."

During our long talk, Inglis referred many times to the man whose leaks prompted talk of such change - though he referred to that man in a particular way.

INGLIS: I thought it was interesting at around right the December timeframe, when one individual on the planet was saying that "I won." I don’t think anybody who's NSA would ever think in those terms.

INSKEEP: This is a side point, but I notice you're not saying the name Edward Snowden. Is there a reason you don’t say his name?

INGLIS: No. I can say that name.

INSKEEP: (Laughter) But you're not going to just now.

INGLIS: I think Mr. Snowden deserves, you know, his day in court. He has his position. He has his opinion. I'd like to see him get his opportunity to make his case.

INSKEEP: As much as you disagree with what he did, has he helped you since he brought about a public debate that you now say that in hindsight, you wish had happened before?

INGLIS: Yeah, in the same way that somebody who burned my house down has given me the opportunity to perhaps build it in a way that I would prefer.

INGLIS: That rebuilding will be left to Chris Inglis' successor. He retires today after running the day-to-day operations of the National Security Agency.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.