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The NSA data collection program isn't criminal; ending it is

Op-ed: The NSA data collection program isn't criminal; ending it is.

On Sunday, while you were eating the leftovers from Thanksgiving and watching the afternoon's football games, the National Security Agency stopped acquiring the call data records of millions of Americans.

NSA did so to comply with the USA Freedom Act, passed by Congress and signed into law by the president after Edward Snowden exposed the program, leading to a public outcry against the government for having such broad access to the call records of American citizens. The backlash raged, even though such actions are legal and overseen by the FISA (Foreign Intelligence Surveillance Act) Court and the intelligence committees in both houses of Congress, and monitored by the government's internal processes.

Throughout the nearly two years of public debate since the program was exposed, the Obama administration continued to apply for FISA Court warrants to compel multiple telecommunications service providers to give NSA their call records. The Obama administration obviously believed that the program was useful, and was permitted to continue to use it under the law, no matter what various critics might opine. Moreover, the FISA Court continued to approve these applications from the government.

The recent attacks in Paris remind us again that there are still organized and capable extremists willing to use violence and terror to attempt to advance their political agenda, be they from the Islamic State, al-Qaida, al-Shabaab, al-Nusrah Front, the Armed Islamic Group, the Moroccan Islamic Combatant Group or the relatively new "Revolutionary Organization 17 November."

Just as Cold War spies used to walk or drive counter-surveillance routes through cities and towns to service dead-drops while FBI counter-intelligence agents followed them, filming and photographing the spies' actions for use at trial, these groups or other foreign based extremists will undoubtedly continue to use modern telecommunications systems, just as the vast majority of innocent citizens the world over leverage them for social media, and everyday personal and professional interactions.

It is therefore a given that we must also acknowledge and accept that world intelligence and law enforcement agencies will also be active in the modern telecommunications environment, seeking to identify, monitor and stop terrorists, narcotics traffickers, cyber criminals and adversarial foreign agents and governments before their efforts come to fruition.

The methods and means intelligence organizations like NSA use to track the electronic footprints and activities of our nation's adversaries should and must remain secret. However, the law and oversight they operate under to constrain their activities within our values and constitutional principles should continue to become more transparent to the general public. Such increased transparency will help to lessen the public's wariness and rush to judgment about what must be inevitably a government conspiracy or illegal activity based on initial news reports.

While Mr. Snowden will undoubtedly continue to claim victory with the passage and implementation of the USA Freedom Act and its alterations to the call record data collection program, there are two things to bear in mind.

The first is that NSA can still get phone records by approaching the FISA Court for a warrant. Congress and the president changed the means by which the call records are obtained, leaving the tool in place by requiring the government to obtain FISA Court approval for a specific selector, while also improving the law our intelligence agencies must operate under in the 21st Century communications environment.

The second is a line from President Obama's January 2014 speech on surveillance, more than six months after the initial leaks: "What I did not do is stop these programs wholesale — not only because I felt that they made us more secure, but also because nothing ... indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens."

More than two years after Mr. Snowden's leaks, not one NSA employee, affiliate or senior leader has been indicted, tried or convicted with a crime related to violating the FISA. Mr. Snowden, however, has been charged with two felonies under the Espionage Act, and has been praised by members of the Islamic State for teaching them how to avoid U.S. surveillance.

Tom Wither (tom@tomwither.com) is an intelligence professional with more than 25 years of experience; the views and opinions expressed are his own and are not those of any organization or element of the intelligence community. He is also the author of two military/intelligence thrillers: "The Inheritor" (Turner Publishing, June 2014) and "Autumn Fire" (Turner Publishing, September 2014).

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