Statement of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On NSA Security Breach

Today, the National Security Agency continues its indiscriminate collection of a massive number of phone records about Americans under Section 215 of the USA PATRIOT Act.  As a nation, we have long needed to have the national conversation about bulk collection that is finally underway, and the Section 215 program should have been declassified long before it was.  But let me make clear, as I have said before:  I do not condone the way this or other highly classified programs were disclosed.  I am deeply concerned about the potential damage to our intelligence-gathering capabilities, foreign relationships, and national security. 

And I am deeply concerned that one person with a security clearance could wreak this much havoc.  According to the New York Times, Edward Snowden accomplished his heist of extraordinarily sensitive information about NSA activities with “inexpensive and widely available software.”  That is to say, Snowden did not even execute a particularly sophisticated breach.  He did not, apparently, face a particularly complex technological challenge while removing these highly sensitive documents from the NSA trove.  And yet, he pulled off what Director of National Intelligence James Clapper recently called “the most massive and most damaging theft of intelligence in our history.”

I have continued to ask the leaders of the intelligence community what is being done to prevent this from happening again.  I have learned that the NSA has devoted substantial resources to fixing the faults that allowed this to happen, has taken some steps to address them, and has identified a range of other actions that need to be taken.  But especially in the wake of the Private Manning leaks, I do not understand how the NSA could have allowed this to happen in the first place. 

This is the same NSA that asks us to trust that it will keep our information safe, and that we should have faith in its internal policies and procedures.  This is the same NSA that first told us that this Section 215 program was essential to national security and had thwarted dozens of plots, only to later acknowledge that that number was closer to one.  The primary defense of the NSA’s bulk collection program now appears to be that the program is more of an insurance policy than anything else. 

Now even that defense of the program has been called into question.  The Washington Post has reported that under this program the NSA collects less than 30 percent of domestic phone records.  The Wall Street Journal reported that the number is less than 20 percent.  These estimates are consistent with the President’s Review Group report, which cautioned against placing too much value in this program as a tool to rule out a domestic connection to a terrorist plot – the so-called insurance policy.  The Review Group report tells us that is precisely because – although the program is unprecedented in scope – it still covers only a portion of the total phone metadata held by service providers.  So the intelligence community has defended its unprecedented, massive, and indiscriminate bulk collection by arguing that it needs the entire “haystack” in order for it to have an effective counterterrorism tool – and yet the American public now hears that the intelligence really only has 20 to 30 percent of that haystack.  That calls even further into question the effectiveness of this program.

Although the program is ongoing, some preliminary and positive changes are underway.  Just last week, the Director National Intelligence announced that the FISA Court has approved procedures under which the government will seek approval from a FISA Court judge before querying these phone records, absent a true emergency.  And the President has directed the Attorney General and the Director of National Intelligence to develop alternatives to the Section 215 phone records program, and report back to him in late March. 

This is progress.  But it will not be enough to just reform the government’s bulk phone records collection program.  This program has not been proven effective, and certainly is not worth the massive intrusion on the privacy of Americans.  Congress should shut it down by enacting the bipartisan, bicameral USA FREEDOM Act.  Congress also must examine carefully the security breach that led to these revelations in the first place. 

The Senate Judiciary Committee will continue its work on these issues at a hearing this week with the Privacy and Civil Liberties Oversight Board – yet another voice concluding that the Section 215 program should not continue.  If the NSA is to regain the trust of the American people, it must spend less time collecting data on innocent Americans, and more on keeping our nation’s secrets safe.

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