President Barack Obama’s speech last week was a thoughtful and comprehensive appraisal of the intelligence community’s signals intelligence mission and capabilities.
The president was clear in stating: “…We have real enemies and threats, and that intelligence serves a vital role in confronting them. We cannot prevent terrorist attacks or cyber threats without some capability to penetrate digital communications — whether it’s to unravel a terrorist plot, to intercept malware that targets a stock exchange, to make sure air traffic control systems are not compromised or to ensure that hackers do not empty your bank accounts. We are expected to protect the American people; that requires us to have capabilities in this field.”
Given this vital mission — to protect the American people — the president stated: “…The men and women of the intelligence community, including the NSA, consistently follow protocols designed to protect the privacy of ordinary people. They’re not abusing authorities in order to listen to your private phone calls or read your emails… Laboring in obscurity, often unable to discuss their work even with family and friends, the men and women at the NSA know that if another 9/11 or massive cyber attack occurs, they will be asked, by Congress and the media, why they failed to connect the dots. What sustains those who work at NSA and our other intelligence agencies through all these pressures is the knowledge that their professionalism and dedication play a central role in the defense of our nation.”
The president’s words were powerful and necessary to ensure to the American people that the intelligence community is working hard to protect the homeland in compliance with the law. It also was a powerful message to the NSA that their mission is vital to the protection of the homeland and their dedicated efforts are legal and appreciated. Indeed, the NSA and the whole of the intelligence community have extensive oversight from the Congress, the judiciary and the Executive Branch, in addition to their own inspectors general. Despite this oversight, to ensure compliance with the law and despite their outstanding performance in protecting the American people, the NSA recently has been subjected to unprecedented criticism. Hopefully, with the president’s speech and with publication of Presidential Policy Directive 28 (PDD28), the focus now will be on establishing any additional policies and structures necessary to further ensure that privacy and security issues are protected and continually enhanced, guaranteeing the transparency and secrecy necessary to protect sources and methods, as mandated by the National Security Act of 1947.
The president articulated a number of actions he is taking in regard to signals intelligence activities at home and abroad. His speech correctly focused on the bulk collection of telephone records under Section 215 of the Patriot Act, noting that the program does not include the content of phone calls or the names of people making calls, rather it provides a record of phone numbers and the times and lengths of calls. This metadata can be accessed only when there is reasonable suspicion that a phone number is linked to a terrorist organization. The president cited the terrorist attack of 9/11 and how one of the hijackers, Khalid al-Mihdhar, made a phone call from San Diego to a known al-Qaeda safe house in Yemen, noting that NSA saw the call but couldn’t see that the call was coming from a person in the U.S. This failing was corrected with the metadata program established by NSA, in compliance with laws passed by Congress, instructions from the Executive Branch and Judicial oversight by the FISA courts and the congressional intelligence oversight committees, which, senior national security experts say, likely would have prevented the 9/11 terrorist attack from happening if NSA had this program prior to the attack.
Retaining this program was a wise and appreciated decision taken by the president. He was clear in stating that we will only continue to use such data to address the threats from counterintelligence, counterterrorism, counterproliferation, cybersecurity, force protection for our troops and our allies and combating transnational crime, including sanctions evasion. The American people should expect no less from our government and, specifically, from our intelligence community. And the bulk collection program is a capability available and necessary to better protect the homeland.
The president stated that he was “ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk metadata.” Accordingly, the president instructed the intelligence community and the attorney general to provide alternate approaches prior to March 28. He also will consult with relevant committees in Congress. Not permitting NSA to retain this metadata, for time-sensitive utilization during a crisis period, is a core issue that must be addressed if this metadata is to be stored by non-government entities. Having timely access to this data during a crisis period is essential. This obviously will be considered when alternative approaches are presented to the president.
PDD-28 covers a number of other issues related to signals intelligence policies, dealing with privacy, data security and access, oversight, U.S. companies, international diplomacy and other related issues. All of these issues will be discussed with and pursued by the Congress during the next few months. Indeed, it is an opportunity for the American people and U.S. businesses to further engage in this important national security dialogue.
Joseph R. DeTrani is president of the Intelligence and National Security Alliance (INSA).