1 November 2013
Masterspy Counsel Overview of Spying
23rd Annual Review of the Field of National Security Law
Executive Updates on Developments in National Security Law
Panel: Privacy, Technology and National Security: An Overview of Intelligence
As Prepared Remarks of Robert S. Litt
General Counsel for the Office of the Director of National Intelligence
October 31, 2013
Not surprisingly, the two major issues that have been occupying my time recently
have been budget issues and the fallout from the Snowden leaks.
I spent the first part of October working almost entirely alone in our office,
supported just by my deputy, advising on who was allowed to work and what
they were allowed to do.
And also responding to inquiries from people who did not seem to comprehend
that when (a) Congress prohibits personnel from working when they arent
paid, and (b) the Intelligence Community isnt appropriated funds to
pay personnel, then (c) most IC personnel wont be able to work.
But even before the shutdown, the Intelligence Community was feeling the
pinch of sequestration.
We recognize that in the current budgetary environment, the IC, along with
the rest of the government, will have to endure some cuts. The problem with
sequestration is that, rather than allowing us to make cuts in a sensible
manner, based on mission needs, it requires us to cut everything across the
We were able to deal with sequestration in the past year by delaying or deferring
some activities and reprogramming funds to cover critical gaps.
But this fiscal year, sequestration will require another round of cuts, and
we wont have the same flexibility to deal with them.
Instead of short-term delays or creative mitigation strategies, we will be
forced to cut capabilities Instead of determining what capabilities we need
to keep the country safe, we will be forced to determine what capabilities
we can afford to provide.
The impact of sequestration will likely open new intelligence gaps and prevent
us from mitigating existing ones.
So we are hopeful that the Congress will find a way to avoid sequestration
for this year, though we recognize that that is by no means a certain outcome.
Obviously, however, since June the bulk of my time has been spent dealing
with leaks about our surveillance activities.
I want to address a couple of big picture issues about this topic.
For one thing, Id like to provide a sort of users guide
for people who follow this in the press.
Begin with the proposition that you shouldnt believe everything you
read or hear, and I mean that literally.
The media reports are often based on documents that are exceptionally
complicated, dense and jargonized, and require a level of technical knowledge
that most people, including me, dont have. And the documents often
present only part of the story.
On top of that, even when reporters come to us for comment and they
dont always we frequently cannot correct their mistakes without
compromising sensitive sources and methods.
A good example of what I am talking about is the story last week that claimed
that we had collected 70 million French telephone calls in a month.
That was simply untrue, because the reporter didnt understand what
he was looking at. As has now been made public, these 70 million calls were
in fact collected by the French intelligence service, outside of France,
in furtherance of mutual counterterrorism and force protection concerns,
and provided by the French intelligence service to us.
But until the truth was leaked to the Wall Street Journal, we couldnt
correct this publicly, to avoid damaging sensitive intelligence relationships.
Thats the kind of problem we face.
Second, a lot of these stories have focused on the raw technical capabilities
of the U.S. intelligence community. And yes, those capabilities are considerable.
But it is important to differentiate between technical capability and actual
practice between what might be done and what is actually done
between what we can do technically and what we can do legally.
For example, there have been stories claiming that NSA is able to crack
encryption or break into private networks, and charges that this compromises
Im not going to comment on whether or not these stories were accurate.
But isnt cracking encryption, or breaking into private networks, exactly
what we want an intelligence agency to be able to do?
How else are we going to collect the communications of people who want to
harm us and our allies, and who use those tools to try to hide their
communications, or to provide policy makers the intelligence they need to
protect the nation?
But just because we try to develop the capability to intercept and decrypt
communications of adversaries and terrorists does not mean that we can or
do use those capabilities against ordinary U.S. citizens, or French citizens,
or Belgians, etc.
Our intelligence agencies are the best in the world, but and this
is the key point they only conduct surveillance to the extent they
are allowed to by the law, and that includes that they do not target the
communications of Americans except as specifically authorized by the law,
and cannot target foreigners except for a valid foreign intelligence purpose.
And this leads to another big picture point. Everything that has been exposed
so far has been done within the law.
We get court orders when we are required to, we minimize information about
U.S. persons as we are required to, we collect intelligence for valid foreign
intelligence purposes as we are required to.
And, unlike many other countries which engage in the same types of collection
activities, our intelligence services are subject to multi-layered oversight,
which includes oversight by Executive agencies, Congress and judicial
authorities. As you have seen in FISA Court documents, that oversight is
not pro forma. Errors are reported. Independent fact finding is conducted.
Hearings are held and remedies are imposed. Congress is briefed.
We also have extensive technical systems that help us ensure that the rules
are complied with.
Even though we arent always perfect even though technical and
human failures can lead to compliance problems nothing has come out
that indicates that there has been any intentional abuse of our surveillance
This is a far cry from, say, the illegal domestic surveillance of the 1960s
I recognize that there are people who believe that the law should be different,
and they have advocated that position forcefully.
But for example the bulk telephony metadata program has been
conducted pursuant to over 30 court orders by over a dozen separate judges.
The last two renewals were after the public controversy erupted, and in the
face of all of the arguments that have been made against the program.
If the law changes, well follow the new law; but for now, well
follow the law as Congress passed it and the courts interpret it.
Finally, I want to talk about the implications of the last few months for
how we authorize and oversee classified intelligence activities.
These disclosures have started a public debate about the appropriate scope
But this debate comes with a cost, and the cost is that to the extent we
are exposing what our intelligence agencies can do, we make it harder for
them to do it. What the Washington Post reports, al Qaeda knows.
For over thirty years, weve had a consensus about how to balance the
need for secrecy in intelligence programs with the need for oversight of
We did this through the congressional intelligence committees, which were
set up precisely for this purpose. We are required by law to keep them fully
and currently informed about all intelligence activities, and we do.
The committees have stood as proxies for the American people, to avoid the
harm to our national security that would come from full public disclosure
of our activities, while ensuring that elected representatives of the people
oversee those activities.
The last few months have provided a different model of oversight one
in which private individuals, without visibility into or responsibility for
protecting the nation, are making their own judgments about what should and
should not be disclosed, and one in which the general public is debating
what our intelligence agencies should and should not do.
Some might argue that there are benefits from this approach. It provides
more transparency for the public and allows public debate about matters that
typically have been kept secret.
But I want to end with two important issues that we need to think about.
One is is oversight by the committee of the whole really the optimal
way to conduct intelligence oversight? Or will the costs to our national
security outweigh the benefits of disclosure?
And the second is that the intelligence community must acknowledge how difficult
it is to keep secrets today. In determining what activities to undertake
we need to give more consideration to what the impact of additional leaks
would be. In each case we have to assess, to a greater extent than we have
to date is the game worth the candle?
The President has directed a review of our intelligence programs, in part
with this issue in mind, and I think that that review, and any follow on
actions, are certainly going to be occupying my time in the next year.