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Deputy Principal Press Secretary Josh Earnest talks to Reporters about the FISA Order

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Thursday, June 6, 2013 at 8:24 PM

White House Deputy Principal Press Secretary Josh Earnest spoke to the press on Air Force One on the way to Mooresville, NC, where President Obama is set to make an announcement today on education. The conversation naturally turned to the NSA’s collection of Verizon customers’ phone records—pasted below are the relevant questions and answers:

MR. EARNEST:  I know there’s at least one story that all of you may be interested in:  the reports overnight about a purported order from a FISA judge, as reported.  So why don’t I read a statement at the top just to give you a sense about where we are on this, and then I’m happy to answer your follow-up questions after that.  So if you’ll bear with me, we’ll do this.

It won’t surprise you to hear that I’m not in a position to discuss specific classified or operational issues.  But what I can explain to you are our policies.  The Patriot Act was signed into law in October of 2001, and included authority to compel production of business records and other tangible details with the approval of a FISA Court.  This provision has subsequently been reauthorized over the course of two different administrations — in 2006 and in 2011.

The Obama administration has made public that some orders issued by the FISA Court, under Section 215 of the Patriot Act, have been used to support important and highly sensitive intelligence collection operations on which members of Congress have been fully and repeatedly briefed.  And I think you’ve heard a couple of members of Congress in both parties today acknowledge that fact.

The intelligence community is conducting court-authorized intelligence activities pursuant to a public statute with the knowledge and oversight of Congress and the intelligence community in both houses of Congress.  There is also extensive oversight by the executive branch, including the Department of Justice and relevant agency counsels and inspectors general, as well as annual and semi-annual reports to Congress, as required by law.

There is a robust legal regime in place governing all activities conducted, pursuant to the Federal Intelligence Surveillance Act.  That regime has been briefed to and approved by the court.  And activities authorized under the act are subject to strict controls and procedures under oversight of the Department of Justice, the Office of the Director of National Intelligence, and the FISA Court, to ensure that they comply with the Constitution and the laws of the United States and appropriately protect privacy and civil liberties.

The order reprinted overnight does not allow the government to listen in on anyone’s telephone calls.  The information acquired does not include the content of any communications or the name of any subscriber.  It relates exclusively to call details, such as a telephone number or the length of a telephone call.

The information of the sort described in the article has been a critical tool in protecting the nation from terror threats as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.

My final point here:  The President welcomes a discussion of the tradeoffs between security and civil liberties.  Many of you covered his speech at the National Defense University just a couple of weeks ago.  In that speech, the President said, “…in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.  That means reviewing the authorities of law enforcement so we can intercept new types of communication, but also build in privacy protections to prevent abuse.”

Q    Does the President worry about the potential of overreach by the NSA under the Patriot Act?

MR. EARNEST:  The authorities that you’re talking about were authorities that were in place before this President took office.  But when this President did take office, he put in place a stronger regime of oversight that included, as I described before, important notifications to relevant committees in Congress, but also important notifications to every member of Congress.

There also is a requirement and important role to play for the judicial branch, including the FISA Court.  There is also an independent role to be played within the executive branch.  So there’s a role for general counsels and even inspectors general to provide oversight in terms of how information is collected, and subsequently, how that information is used.  So there is a strict regime that’s in place that has been in place for some time and was strengthened under this President.

Now, the thing that I want to make clear is that the top priority of the President of the United States is the national security of the United States and protecting this homeland.  And we need to make sure that we have the tools we need to confront the threat posed by terrorists, to disrupt plots that may exist, and to otherwise protect the homeland.  The President is committed to that.  That is his top priority.

But what we need to do is we need to balance that priority with the need to protect the civil liberties and constitutional rights of the American people.  And that is the subject of a worthy debate — that there are people who have a genuine interest in protecting the United States and protecting constitutional liberties — constitutional rights and civil liberties that may disagree about how to strike this balance.  We welcome that debate.  The President has spent a lot of time thinking about this.  I think that was evident in his speech and I think that’s evident from the way these programs have been conducted.

But striking that balance and having a debate about how to strike that balance is something that the President and this administration welcomes.

Q    A couple of members of Congress have suggested today that this was a renewal of an order to look at records — or an order from the court has been in place actually for seven years.  Do you believe that that’s accurate?

MR. EARNEST:  Well, I’m not in a position to talk about purported orders, even if they’re — orders that are issued by FISA judges are classified, so I’m not in a position to talk about those.  I’m also not in a position to talk about operational details.

But what I can tell you is that the authorities that are referenced by this purported order are something that have been in place for a number of years now, prior to this President taking office.  And as I mentioned, when this President took office, one of the decisions that he made was putting in place an oversight regime involving all three branches of government to provide oversight over the exercise of those authorities.

Q    But I thought that the act made these records available to the government when sought, when they were in relation to a particular investigation.  Do you think that this relates to a specific investigation?  Even if you can’t say what it is, can you say if it is a specific investigation?

MR. EARNEST:  It is my understanding that — I’m not in a position to talk about this because a lot of the information that we’re talking about here is classified.  All I can tell you is that these authorities have been in place for quite some time, prior to this President taking office.  And these are authorities that, when acted upon, are regularly briefed to Congress, and when we act on these authorities, the judicial branch is involved in providing oversight.

But in terms of specific operational details, I just can’t get into them.

Q    But can I just ask this — it’s an echo of Steve’s question — but in what the President said in his speech at the National Defense University, the part that you cited at the beginning of this briefing, does he believe that the interpretation of the law has perhaps become more flexible than he is comfortable with?  Is this something he’s reacted to since this news broke or since it was last under discussion in the White House, that he thinks perhaps the meaning of the interpretation of the law needs to be tightened somewhat?

MR. EARNEST:  Well, it’s the view of the President that there is in place a very strict oversight regime that, again, involves all three branches of government.  It includes a federal judge — or judges.  It includes very robust congressional oversight, and an important role to play for inspectors general.  So even people who are independent within the executive branch have a role to play here, both in terms of how this information is collected and how this information is used.

And this strict regime reflects the President’s desire to strike the right balance between protecting our national security and protecting constitutional rights and civil liberties.  So this is something that the President spends a lot of time thinking about, and when he came into office he made some changes to ensure that the proper level of oversight was incorporated.

That said, it’s understandable that there are people that have a genuine interest in protecting our national security and who are committed to being thoughtful about protecting constitutional rights and civil liberties, and that the close examination of some of these complicated issues could cause people to arrive at differing opinions about how to implement — about how the executive branch should exercise these authorities.  The President welcomes that debate.

He’s thought about this a lot.  He has his own ideas; he’s presented them.  But he welcomes the debate and the different point of view from people who are informed and have the right perspective on this in terms of prioritizing our national security and who properly value the constitutional rights and civil liberties of the American people.

Q    Just to clarify — has every member of the House and Senate been briefed on this?  Because some, it seems, have been a little caught off-guard.

MR. EARNEST:  I want to read to you specifically from a letter that was sent by the Assistant Attorney General back in October of 2011 on this.  And I’m not going to — it looks long, but I’m only going to read you one line, which says, “In December of 2009 and in February of 2011, the Department of Justice and the intelligence community provided a document to the House and Senate Intelligence Committees to be made available to all members of the House and Senate, describing the classified uses of Section 215 in detail.”  Section 215 is the part of the Patriot Act that explains the authorities that are granted to the executive branch related to some of this surveillance.

So I can get you a copy of this letter, if you don’t already have it, that details that.  And I also think that Senator Chambliss today noted that every member of the Senate, as far as he knew, had been briefed on this.

Q    Senator Collins said otherwise.

Q    Right.  Senator Collins and I think Senator Tester said otherwise as well.  And how do you reassure the American public that this information won’t be misused for political purposes or purposes beyond the scope of intelligence, given what’s been going on with the IRS and other sort of scandals?

MR. EARNEST:  Well, the reason that an oversight regime is in place — a strong oversight regime is in place is to protect the constitutional rights, the privacy, and the civil liberties of the American public.  So there are federal judges who are involved in making sure that this information is obtained and handled properly.  Members of Congress are regularly briefed on this process.  There are also independent members of the executive branch who are briefed on this process so that they can provide proper oversight.

But what I can tell you is that this is a — that these decisions are made by national security professionals who have, as their priority, protecting our homeland and protecting the safety of American citizens.  But there is a very strict oversight regime in place that includes all three branches to make sure that the constitutional rights and privacy of the American public are protected.

Q    So just to be clear, the President is comfortable with the NSA domestic surveillance program as it stands today?

MR. EARNEST:  The President believes that we have in place a very strong oversight regime that includes all three branches of government, and that that strong oversight is a key part of balancing the need to protect our national security and protect the constitutional rights and civil liberties of American citizens.

And at the same time, we understand that there might be people who have looked at these facts who have the right values in terms of they believe that our security is a priority, they believe that protecting constitutional rights is a priority.  And they may arrive at a different opinion.  And if they want to have a debate and a discussion about striking that right balance, we welcome that discussion.

Q    Is he willing to change anything based on looking at these facts, as you say?
MR. EARNEST:  Well, again, the strict oversight regime that’s in place is in place because the President put it there.  But if there are people that have a different opinion about how to appropriately strike the balance between our national security and civil liberties, the President is welcome to have that conversation with individuals.  But he is also more than willing to have a broader public debate about this.

The American people have a legitimate stake in the outcome of this discussion.  So he welcomes, to the extent practicable, talking about some classified issues here.  But to the extent practicable, he believes that there is a legitimate public debate that can be had about this as well.

Q    Have other telecom companies besides Verizon been asked to turn over records?

MR. EARNEST:  I’m not in a position to offer up any additional operational details about this.

Q    Can we expect the President to come out and talk about this at some point?  Or –

MR. EARNEST:  I don’t anticipate that this will be part of the President’s remarks today.

Q    Not necessarily today, but at some point as people become more aware of what’s been going on.

MR. EARNEST:  Well, I certainly wouldn’t rule it out.  He incorporated a speech on this exact issue — or he incorporated his thoughts on this exact issue in the speech that he gave a couple of weeks ago.  So it certainly wouldn’t be a surprise to me that he might bring this up again.

Q    Will the government investigate this leak?

MR. EARNEST:  Those are decisions that are made by the Department of Justice, by law enforcement personnel over there.  So I’d refer that question to the Department of Justice.

Q    DOJ has said that there’s been reports that they are investigating this leak.  Does the President support that?

MR. EARNEST:  I’ve seen those reports, but I can’t comment on the veracity of those reports.  So I’d refer you to the Department of Justice.

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