2023-01-25 11:00:13

NSA's former top lawyer on understanding electronic surveillance — Intelligence Matters

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In this episode of "Intelligence Matters," host Michael Morell speaks with Glenn Gerstell, former general counsel at the National Security Agency, about how and when the NSA is authorized to use electronic surveillance to collect intelligence on foreign targets. Gerstell offers a detailed explanation of the origins and evolution of the Foreign Intellingence Surveillance Act (FISA) and the statute, most commonly referred to as Section 702, that allows electronic surveillance using U.S. electronic communications service providers. He and Morell walk through the legal limitations put forth in the statute and the debate currently surrounding its reauthorization by Congress.


  • On existing legal guardrails: "[N]ot only does the Section 702 provide the authority for the government to to undertake this kind of surveillance, but it also sets out the guardrails to to protect Americans, given the nature of the Fourth Amendment and our and our country's values. So let's start with the fact that there's never been a case of a deliberate misuse of the statute. There's been no recorded case and or no no case at all. And I was there for five years and certainly could vouch for it during my period time when there's been a deliberate and malicious misuse of the statute to to to pervert its purpose."
  • On the national security stakes surrounding Section 702: "We certainly don't want to go back to the pre-9/11 situation where there was information in the FBI available to the FBI that it wasn't able to connect the dots to prevent 9/11. So we would never want to be in a position where the FBI had information in its files, in its 702 folder, so to speak, but because of its inability to access it, it wasn't able to stop the next,God forbid, 9/11. So this is an important issue. We want the Bureau to be able to conduct legitimate, appropriate law enforcement activities to keep our nation safe. And yet, at the same time, we want to make sure that we're doing so in a way that is consistent with American values and the Fourth Amendment."
  • On the importance of reauthorization: "[T]his statute is of crucial importance. It is absolutely been essential in counterterrorism. It's been essential in helping the United States understand the activities of foreign adversaries. It's increasingly important in cybersecurity. The problem has been that that by definition, what the statute is aimed at is classified information. So it's very hard for the government to explain exactly how valuable it is other than to assure people: Yes, it's really, really, really critical."

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