The U.S. government’s collection of phone and Internet communications data under two classified surveillance programs is fully legal and their exposure has harmed national security, FBI Director Robert Mueller said.
“The legality has been assured by the Department of Justice,” Mueller said today during testimony to the House Judiciary Committee. The Foreign Intelligence Surveillance Court “has ruled on these two programs, monitors these two programs and has assured the legality of the efforts undertaken in these two programs.”
Lawmakers have raised concerns about the legitimacy of surveillance efforts since the disclosure that two National Security Agency programs gave the federal government access to data on millions of U.S. phone calls and Internet activities.
Michigan Representative John Conyers, the top Democrat on the panel, questioned whether the Federal Bureau of Investigation, which has a role in analyzing and using the data, was violating the intent of the federal statutes that allowed the programs to exist.
“It seems clear that the government’s activity exceeds the authority this congress has provided, both in letter and in spirit,” said Conyers, who also said he plans to introduce legislation tomorrow to impose restrictions and new oversight for the programs.
Mueller, who will depart the FBI in September after 12 years on the job, made his first public comments today since the classified surveillance programs were exposed by Edward Snowden, a 29-year-old NSA technology contractor who most recently worked for Booz Allen Hamilton Holding Corp. (BAH)
The administration also has confirmed the existence of a separate program, called Prism, that monitors the Internet activity of foreigners believed to be located outside the U.S. and plotting terrorist attacks.
Snowden’s disclosures, to the Guardian and Washington Post newspapers, sparked a criminal investigation by the Justice Department, calls for the surveillance to be reined in, and a lawsuit by the American Civil Liberties Union accusing the government of violating citizens’ privacy. He fled to Hong Kong May 20 before revealing himself as the source of the leak.
Mueller, whose agents are conducting the criminal investigation into the leak, said Snowden’s exposure of the programs caused “significant harm to the nation.”
Justice Department prosecutors are in the process of preparing charges against Snowden, according to two U.S. officials briefed on the matter. Once charges are filed, the U.S. will ask Hong Kong to detain Snowden for as many as 60 days before making a formal extradition request, according to a treaty signed between the two countries in 1996.
Hong Kong will deal with any extradition request based on its own legal system, Chief Executive Leung Chun-ying said in a Bloomberg Television interview in New York. He declined to comment on specific cases.
FBI agents, who are conducting the criminal investigation alongside the NSA’s own inquiry, have interviewed Snowden’s family and associates and are looking for information about how he obtained the material he eventually leaked, said the officials, who weren’t authorized to publicly discuss the probe and asked not to be identified.
The investigation into Snowden will also include an inquiry into whether he might have been recruited or exploited by China, said two other U.S. officials.
Both officials, who asked not to be identified because the investigation is still under way, said they were unaware of any evidence linking him to China. The questions about whether he had contact with Chinese or any other foreign intelligence officials are based on the circumstantial evidence of his flight to Hong Kong, they said.
The officials added that Snowden also may be the idealistic whistle-blower he claims to be and nothing more.
“I’m neither traitor nor hero,” Snowden said in an interview published in the South China Morning Post. “I’m an American.”
Along with an investigation of the technical aspects of how Snowden acquired the leaked information, the two officials said, the counterintelligence inquiry into Snowden will include a review of his finances, his communications and movements. It also will include a search for any evidence of sexual entrapment or blackmail, techniques the officials said are used frequently by China to recruit agents.
The two officials and a retired U.S. official, who also asked not to be identified discussing classified matters, said that despite the administration’s public focus on Chinese efforts to breach computer networks, much of China’s spying uses traditional low-tech techniques or a combination of both, such as recruiting agents to steal information using thumb drives.
Public opinion on Snowden and the classified programs is split, according to a recent survey by Time magazine. Forty-eight percent of those surveyed by Time approve of the surveillance programs while 44 percent disapprove -- a statistical tie in the poll, which had a 4 percentage point margin of error.
The same poll found that while 54 percent of those surveyed found that Snowden’s actions were a “good thing,” 53 percent said he should be prosecuted for the leaks.
Senator Ron Wyden, an Oregon Democrat who has asked for public hearings into the NSA’s surveillance program, said the administration needed to be clearer about why the surveillance program was necessary.
“When the intelligence community is making a case for a particular program that has significant impact on privacy rights, I believe it’s important that they describe what the unique value of that program is that they can’t obtain with other programs,” Wyden said in an interview.
At the request of lawmakers at today’s hearing, Mueller attempted to explain the scope of the information -- known as “metadata” -- collected by the NSA as part of the program. In one program, where telephone records are collected, intelligence officials have no access to the content of the calls without a warrant. They are able to see the phone numbers and the length of calls through the program, Mueller said.
Internet communications also wouldn’t contain the content of any message, Mueller said. That would include, for example, the subject line of an e-mail, he told lawmakers. Mueller said he coulnd’t say whether the government was able to obtain geographic location data, though he did say he was unaware of any database that would hold such information.
Mueller’s appearance on Capitol Hill came the day after General Keith Alexander, the head of the NSA, told a Senate committee that the programs had played a role in thwarting “dozens” of terror plots since their existence.
Mueller said the programs, had they existed at the time, might have aided law enforcement officials in the months before the Sept. 11, 2001, attacks on the U.S.
The U.S. might have been able to track a call made by one of the eventual hijackers located in San Diego, California, Khalid al-Mihdhar, to an identified al-Qaeda safehouse in Yemen.
“If we had the telephone number from Yemen, we would have matched it up to that telephone number in San Diego, got further legal process, identified al-Midhar,” Mueller said.
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