The Complex

NSA Official: Keeping Americans’ Phone Records Could Jeopardize National Security

A federal judge has ordered the National Security Agency to indefinitely hold onto the phone records of hundreds of millions of Americans in a massive database that civil liberties groups have long wanted to destroy and that's been at the center of a legal controversy for months. But in a bizarre twist, the NSA itself now says keeping the phone records will impose a heavy toll on the agency and will ultimately distract the NSA from its national security mission.

That assertion came in the form of a public declaration filed by the Justice Department in a hearing before a California district court Wednesday. Teresa Shea, the head of the NSA's Signals Intelligence Directorate, wrote that indefinitely keeping the phone records "would impose significant financial burdens on the NSA, divert personnel and technological resources from performance of the NSA's national security mission, and present other issues as well."

Shea said it would take months and several technology personnel who might otherwise be working on intelligence operations to devise the software and storage solutions to retain the data potentially for years to come. Under the rules of the phone records collection program, the records are usually destroyed after they turn five years old, but a judge told the NSA last week to keep them.

Shea's statement was a rare assertion by the NSA that keeping the phone records might cause unintended consequences. Agency officials, including outgoing NSA Director Gen. Keith Alexander, have said the phone database is one of the most important tools they have to find terrorists inside the United States. Officials have insisted that it's used judiciously, and that any intrusion into Americans' privacy is limited because the database contains only logs of calls by phone number, not names or the recorded conversations.

Shea's remarks about the program come at a time when both the agency and the Obama administration are struggling with the question of what to ultimately do with the database of hundreds of millions of Americans' phone records. Officials have proposed letting the collection continue and having NSA keep the data, or requiring phone companies or some third party to hold onto it for future investigations. The government could scrap the program altogether, but that outcome that seems unlikely given the value NSA places on it.

The database has been perhaps the most controversial of the NSA programs revealed by former contractor Edward Snowden, and a series of recent legal maneuvers by civil liberties groups and government lawyers has effectively guaranteed it will grow even larger.

The NSA didn't oppose keeping the records. But Shea's declaration seemed to show some distance between the agency, which would have to come up with some technical solution for preserving the records, and the Justice Department, which first proposed last month holding onto them longer than five years in case civil plaintiffs demanded evidence of alleged spying.

Shea, the senior NSA official, said there were essentially two options on the table for keeping the records: Retain only those phone records of plaintiffs in the cases or to keep all the records en masse. The latter appears to be the more technologically feasible solution, and it's the one the government prefers, because it would prevent NSA from having to go through the database and pluck out only specific records.

But both approaches will impose significant "burdens, costs, and risks" to the agency, Shea said. She didn't spell them out in detail in her public declaration, but they are specified in a classified document that only the judge, and not the plaintiffs suing the government, may read, Shea said.

Still, it was not clear what particular burdens the NSA might face. Elsewhere in court documents, officials have said that older phone records could be kept on tape, a fairly primitive form of storage. The government has proposed segregating the older records from newer ones that are still used for terrorism investigations and intelligence purposes. Investigators and analysts wouldn't be allowed to use the older records.

Spokespersons for the NSA and the Justice Department declined to comment.

Phone companies have resisted proposals for them to store the records, citing high costs as one factor. Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, has said that U.S. carriers might have to spend as much as $60 million a year if they're required to retain old phone records.

Shea's directorate is responsible for collecting signals intelligence, of which phone records are a major source. It would fall partly to her staff to come up with a technological solution for keeping and storing the data.

Shea made her declaration to Judge Jeffrey White of the Northern District of California who last week ordered the agency to preserve the records indefinitely as evidence in a pair of cases brought by civil liberties and privacy groups opposed to NSA surveillance. There are currently six civil cases pending that directly challenge the program, as well as other cases challenging the legality of government surveillance undertaken during the Bush administration at the president's direction.

Judge White kept his order to preserve the documents in place on Wednesday and said he will issue a more detailed ruling soon.

An attorney for the Electronic Frontier Foundation, which represents plaintiffs in civil cases against government surveillance, said the government could destroy the phone records if it would confirm that nearly two dozen groups bringing suit are among those who had their records collected collected. A Justice Department attorney said that information was secret.

The department offered an alternative solution: The government could give the judge, in secret, a list of the phone companies that have turned over records to the NSA. But Judge White seemed uninterested in hearing alternative proposals at this late stage in the process. The government was set to begin destroying phone records last week, and the question of whether to preserve the information went down to the wire.

"The government [had] its opportunity to propose alternatives," White said, according to the San Francisco Chronicle. "They didn't do it, and now it's too late."


Shea Declaration

Justin Sullivan / Getty Images News

National Security

Bad Romance: France’s $1.7 Billion Warship Deal with Russia Gets New Scrutiny

This story has been updated.

French officials have spent years defending a $1.7 billion arms sale to Russia, a deal Paris won after beating out rival nations like Germany and Spain. The United States and its Baltic allies have spent just as long warning that selling powerful amphibious warships to the Kremlin risked giving Russian strongman Vladimir Putin powerful new weapons to use against his neighbors.

With Russia showing no signs of ending its military occupation of Ukraine's Crimean peninsula, the deal is suddenly facing new scrutiny. French President Francois Hollande said Saturday that France will review its military cooperation with Russia if Moscow doesn't begin to pull its forces from Crimea and drop its threats against Ukraine's fragile central government. The tough language was a first for the French leader: Hollande had previously given no indication that he was willing to suspend or cancel the deal. Earlier this month, in fact, he said it was still on track. Barring something unforeseen,the first French-built ship, the Vladivostok, will be delivered to Russia this fall. The second is under construction in France.

Still, Hollande's willingness to reconsider the deal comes as France takes an increasingly combative diplomatic tone toward Russia. France's United Nations envoy, Gerard Araud, has gone out of his way to needle his Russian counterpart, Vitaly I. Churkin, disparaging his legal justification for Crimea's secessionist bid as a "pathetic" and outdated relic of a bygone era of Russian and Soviet imperialism. While American and British diplomats highlight Russia's what they see as anti-democratic aggression in Crimea, Araud has taken particular pressure in dismissing Moscow's hardline approach as plain dumb.

"I see a rookie chess player," Araud said in a recent statement before the U.N. Security Council, suggesting Russia's military action would undermine its effort to exercise influence over Ukraine. "Russia might win the rook, but it will lose the game."

French Foreign Minister Laurent Fabius reinforced the possible end of the deal on Monday, telling a TV station there that cancelling the delivery of the ships to Russia is on the table.

"If Putin carries on like this, we could consider canceling these sales, " Fabius said. He added that including the deal in sanctions would also hurt the French economy.

The deal in question dates back to January 2011. It called for four of France's Mistral-class ships to be built - two primarily by French defense firm DCNS, followed by two in Russia -- and then delivered to the Russian navy. The agreement would create jobs in both countries, and provide Moscow with something it was sorely lacking: the kind of amphibious war ships it could use to project power by flying troops into conflict zones from the sea by helicopter. Moscow's need for such ships had been evident since its 2008 invasion of neighboring Georgia. Russia won the engagement decisively, but later said it would have captured a key port in the breakaway Georgian province of Abkhazia more quickly with better warships.

Despite the mounting Western fury over Russia's current occupation of Crimea, it's unclear how much more would have to happen for Paris to cancel the deal. France's ailing defense industry desperately needs new customers, and the Russian deal is an unusually large and lucrative one, according to Christopher Chivvis, an expert on European security issues at the Rand Corp.

"There are economic incentives on both side before you even start getting into the military incentives from the Russian side," he said. "I think you'd have to see the crisis continue to deteriorate."

Russia may be betting on France not wanting to scuttle the deal. Moscow has significant ambitions to expand its navy in the Mediterranean and in the Black Sea, but has struggled to get its own shipyards to build vessels, said Eric Wherteim, a military analyst with the independent U.S. Naval Institute.

"Since the Cold War a lot of their warships have kind of just been in limbo," he said. "It takes them 10 years or more to build something... The French ships were laid down and the construction started in 2012, and they are almost ready for delivery [to Russia]. Other countries and other shipyards are able to do things very quickly and efficiently, and the Russians are just not able to do it."

When the Mistral deal was first announced, it sparked widespread fury among Russian shipbuilders who wanted the work, Wherteim said. But Moscow decided its military shortcoming were serious enough that it needed to make the agreement anyway. The Mistral ships carry about 160 personnel, and are able to carry at least 16 heavy military helicopters at any one time, along with landing craft, according to a U.S. Navy assessment.

The United States raised objections about the Mistral deal privately before it was signed. then-Secretary of Defense pressed French defense minister Herve Morin on it in a February 2010 meeting in France, according to a diplomatic cable released by the website Wikileaks.

"SecDef raised U.S. concerns over the sale of a Mistral-class helicopter carrier to Russia as sending a mixed single to both Russia and our Central and East European Allies," the cable said. "Morin refuted this idea, arguing that the sale was a way to send a message of partnership to Russia at a critical time."

At the time, Gates took a decidedly more measured tone publicly. Asked during the same trip about Russia's interest in buying the ships, Gates declined to discuss what he told Morin.

"Yes, we did discuss it. We had a good and thorough exchange of views," Gates said. "I will leave it at that."

 

Staff writer Colum Lynch contributed to this report.

 

Photo by Frank Perry/AFP/Getty Images