The National Security Agency's general counsel, Rajesh De, defended his agency's massive phone and Internet surveillance programs during a Monday hearing of the Privacy and Civil Liberties Oversight Board, but also said public debate about the programs could be a good thing.
"It's certainly possible to think that increased public discourse about intelligence programs is a good thing," De said, despite objecting to the "illegal" actions of former NSA contractor Edward Snowden, who disclosed the programs to the press beginning in June.
The PCLOB is an independent executive branch agency established to advise the government on privacy-related issues relevant to terrorism investigations. After years of dormancy, the agency's profile dramatically increased alongside public outrage about the scope of NSA surveillance. It is currently preparing policy recommendations for the once-secret programs.
Other government attorneys speaking at the hearing made vaguely positive statements about public discourse, but most of their commentary was more in line with the official scorn that greeted diplomatic and military disclosures by WikiLeaks in 2010.
"We don't know the harms yet," De said.
"We may never know for certain," said Robert Litt, general counsel of the Office of the Director of National Intelligence, "[but] we may see certain kinds of information dry up."
Patrick Kelley, acting general counsel of the Federal Bureau of Investigation, said "for every disclosure that the American public has, our adversaries have it as well."
But, Kelley said, "we want the public, we need the public... [and] it's important to know where the lines are... [so] the debate is helpful."
He observed that "[it] took an unauthorized disclosure to bring about the discussion."
Despite offering vague encouragement for discussion about the programs, the attorneys – who were grilled by the five-member board at the Mayflower hotel in downtown Washington,D.C. – offered few non-public details to defend them and were hesitant to endorse far-reaching reforms.
One of the most recent disclosures from Snowden is that the NSA taps into data streams connecting Yahoo! and Google facilities, using Executive Order 12333. The Washington Post reported on the program, code-named MUSCULAR, on Oct. 30.
A top secret document dated Jan. 9, 2013, said the program processed 181,280,466 records from the tech giants in the preceding 30 days, according to the Post. The office of the DNI denied to the Post that the program intended to evade limitations under the Foreign Intelligence Surveillance Act.
De said Monday he "can't address the veracity or lack thereof" of the article, but claimed a program such as MUSCULAR would not intentionally evade scrutiny by the Foreign Intelligence Surveillance Court.
The NSA's top lawyer also insinuated the reporting was faulty and asked the public to scrutinize coverage "with a certain amount of rigor... as you read articles that may or may not be true." Many news reports, De said, include language saying the exact scope of programs are unclear.
"Even by the terms of the article itself there is no connection to the 702 or 215 sections we're here to discuss," De said, referring to section 702 of the FISA Act, added in 2008 and used to justify some Internet surveillance, and section 215 of the Patriot Act of 2001, which is used to justify the government collection of all Americans' phone records.
Like the government attorneys at the PCLOB hearing, President Barack Obama says he welcomes the surveillance debate while also condemning Snowden, who was granted temporary asylum by Russia Aug. 1 after being charged with violating the Espionage Act of 1917.