Speaking at a Washington, D.C., Newseum conference on Edward Snowden’s revelations about the U.S. government’s data collection programs, Kate Martin, director of the Center for National Security Studies, addressed the public’s right to know. “We’ve always understood that intelligence activities are probably secret,” she said. But to extrapolate from that that “the scope of the law and the scope of the power also must be secret [is] an enormous leap which I think needs to be debated.”
That is a reasoned position. But it is not always easy to separate the powers from the activities if by powers we mean to be very explicit with regard to the type of technology that will be used, the type of information that will be collected, and so forth. That comes close to telling adversaries how to avoid detection.
One can argue that in a democracy it is not possible to safeguard where the line has been drawn if you can’t see the line. But Robert Litt, general counsel in the Office of the Director of National Intelligence, defended the program at the conference, saying, it’s a “myth that this is an unchecked authority.” He explained that the Foreign Intelligence Surveillance Act (FISA) court issues two orders when it approves collection of U.S. citizens’ phone metadata: one, which Snowden leaked, directs the provider to turn over the information; “the other, which was not leaked, is the order that spells out limitations of what we can do with the information after it’s collected, who has access, what purposes they can access it for, and how long it can be retained.”
Moreover, “the metadata that is acquired and kept under this program can only be queried when there is a reasonable suspicion based on specific facts that a particular telephone number is associated with a specific foreign terrorist organization, and then the only purpose for which we can make that query is to identify contacts,” he said. But, he asserted, “You need to have the haystack, especially in the case of a terrorist-related emergency.”
Martin said that the basic problem was that though “there are at least four separate statutes that would allow the government to collect telephone metadata,” the government was “conspicuously silent” about the fact that it was doing it. Perhaps there wouldn’t be this uproar if the government had disclosed the practice up front, she said.
“We have an incomplete picture of what the government’s overall legal powers and authorities are to collect very sensitive information about Americans,” Martin said. Litt responded: “If we want to conduct oversight about intelligence in the open, that’s great for transparency, but we won’t have much of an intelligence collection apparatus.”
Secrecy requires trust, however. And stories such as the July 7 Associated Press article of how New York Police Department officers abuse their access to the FBI’s National Crime Information Center database don’t help make the case that government can be trusted not to abuse secret access to personal data.