From IC On The Record: A response to the Times Editorial, and the FISC Renews the Telephony Metadata Program

To the Editor: “Edward Snowden, Whistle-Blower” (editorial, Jan. 2) repeats the allegation that James R. Clapper Jr., the director of national intelligence, “lied” to Congress about the collection of bulk telephony metadata. As a witness to the relevant events and a participant in them, I know that allegation is not true. Senator Ron Wyden asked about collection of information on Americans during a lengthy and wide-ranging hearing on an entirely different subject. While his staff provided the question the day before, Mr. Clapper had not seen it. As a result, as Mr. Clapper has explained, he was surprised by the question and focused his mind on the collection of the content of Americans’ communications. In that context, his answer was and is accurate. When we pointed out Mr. Clapper’s mistake to him, he was surprised and distressed. I spoke with a staffer for Senator Wyden several days later and told him that although Mr. Clapper recognized that his testimony was inaccurate, it could not be corrected publicly because the program involved was classified. This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person’s state of mind from extemporaneous answers given under pressure. Indeed, it would have been irrational for Mr. Clapper to lie at this hearing, since every member of the committee was already aware of the program. Robert S. Litt General Counsel Office of the Director of National Intelligence Washington, Jan. 3, 2014

On several prior occasions, the Director of National Intelligence has declassified information about the telephony metadata collection program under the “business records” provision of the Foreign Intelligence Surveillance Act, 50 U.S.C. Section 1861 (also referred to as “Section 215”), in order to provide the public a more thorough and balanced understanding of the program. Consistent with his prior declassification decisions and in light of the significant and continuing public interest in the telephony metadata collection program, DNI Clapper has decided to declassify and disclose publicly that the government filed an application with the Foreign Intelligence Surveillance Court seeking renewal of the authority to collect telephony metadata in bulk, and that the court renewed that authority on January 3, 2014. It is the administration’s view, consistent with the recent holdings of the United States District Courts for the Southern District of New York and Southern District of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, that the telephony metadata collection program is lawful. The Department of Justice has filed an appeal of the lone contrary decision issued by the United States District Court for the District of Columbia. Nevertheless, the Intelligence Community continues to be open to modifications to this program that would provide additional privacy and civil liberty protections while still maintaining its operational benefits. To that end, the Administration is carefully evaluating the recommendation of the President’s Review Group on Intelligence and Communications Technologies regarding transitioning the program to one in which the data is held by telecommunications companies or a third party. In addition, the Privacy and Civil Liberties Oversight Board will complete a report on this program in the near future. The Administration will review all of these recommendations and consult with Congress and the Intelligence Community to determine if there are ways to achieve our counterterrorism mission in a manner that gives the American people greater confidence. The Administration is undertaking a declassification review of this most recent court order.