Representatives from the U.S. Federal Bureau of Investigation (FBI), National Security Agency (NSA), and Department of Justice (DOJ) faced serious scrutiny before the United States Congressional House Judiciary Committee on Wednesday in a public hearing on the ‘Administration’s use of FISA Authorities.’ The defining narrative of the hearing came not from the testimony but the Members themselves, who indignantly contended that Congress had been largely kept in the dark about the nature and scope of the surveillance programs while expressing concern that intelligence agencies are operating under secret laws with little oversight.
The hearing explored the authorization of two programs: the collection of domestic phone metadata under Section 215 of the PATRIOT Act, and the surveillance of the communications of those believed to be non-US persons under Section 702 of the FISA Amendments Act. Although the Committee heard from a panel of government witnesses and a panel of legal experts, the most interesting aspects of the hearing came during the testimony of the four government witnesses: Deputy Attorney General James Cole; Executive Assistant Director of National Security at the FBI Stephanie Douglas; General Counsel at the Office of the Director of National Intelligence Charles Litt; and John Chris Inglis, Deputy Director of the NSA.
Members of Congress claim to be left in the dark
In the aftermath of the surveillance scandal, supporters of the programs have claimed they were subject to rigorous congressional oversight. President Obama even assured the public that “the programs are secret in the sense that they are classified. They are not secret, in that every member of Congress has been briefed.” Judging by the response of the Members at the hearing, this was not the case.
Multiple representatives serving on the Judiciary Committee stated they had only learned of these programs through recent leaks — despite the fact that this committee is directly responsible for oversight of the judiciary and judicial proceedings, federal courts and judges, and civil liberties and constitutional rights. That is, they’re responsible for the Foreign Intelligence Surveillance Court, or FISC, responsible for the application of the Foreign Surveillance Intelligence Act (FISA) and the FISA Amendments Act (FAA).
Among those who claimed ignorance was Congressman Spencer Bachus. Congressman Bachus has served in the House for twenty years, is the former Chairman of the House Financial Services Committee, and as part of the Judiciary Committee is a member of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations. The fact that he claimed to be among those unaware of these programs is an indication of how limited the administration’s efforts to fully brief members on the scope and scale of these programs actually were.
In fact, Congressman Bachus raised this point, stating that, to his knowledge only fourteen members of Congress knew of the programs. Mr. Litt responded that when the program was up for renewal a letter was sent to both the House and Senate Intelligence Committees, and that he believed that classified briefings were available for other Members of Congress, notified in a letter sent by the Intelligence Committee. If this is the case, the only confirmed notification to the legislative branch was a single letter, sent to 36 of the 535 members of Congress — upon the renewal of the programs.
Throughout the hearing it became increasingly clear that claims of full Congressional oversight by the Obama administration are in fact are gross exaggerations. Intelligence officials have repeatedly asserted that although a warrant is not required to access metadata stored by the NSA, each query is reported on and subject to rigorous retroactive review by all branches. When Congresswoman Judy Chu asked if Members of the Committee could see these reports, she was informed by Mr. Cole that they were classified. The congresswoman pushed back reminding him that he had claimed the reports were reviewed by Congress — leading to Cole backpedalling and offering his ‘belief that they were available’ by appointment for classified briefings.
Congresswoman Zoe Lofgren also expressed displeasure with the lack of information provided to Congress. She voiced serious concerns that there was not adequate oversight from the legislative branch, questioning how thorough reports to Congress really are. Lofgren then revealed that the annual PATRIOT Act Section 215 report to the Judiciary Committee was less than a single page long and not more than eight sentences.
Questioning judicial oversight and calling for change
Other members raised questions about the legitimacy of the FISC and the scope of authorizations it had granted enabling the collection of massive amounts of metadata — and many expressed the belief that, at least concerning the collection of metadata of U.S. persons, serious reform is necessary.
Some members of the committee questioned whether the FISC acted as a rubber stamp for the government. Representative Hakeem Jeffries perhaps best expressed this concern, reminding the witnesses that of the almost 35,000 requests made to the court since it’s creation, 490 were modified and only 11 were denied.
Representative Jerrold Nadler offered particularly strong questions, pushing Mr. Cole on the the validity of bulk metadata collection. After a tense back-and-forth regarding the traditional scope of grand jury subpoenas in which Cole defended the programs’ oversight, Nadler declared that “the fact that a secret court, unaccountable to the public knowledge, may join you in abusing or misusing this information is of no comfort whatsoever.”
Two representatives ultimately stated that without reform, PATRIOT Section 215 would not be renewed. Representative Jim Sensenbrenner, the architect of the original PATRIOT Act, reminded the witnesses of the sunset provisions associated with that legislation: Section 215 is set to expire in 2015. Sensenbrenner informed the government witnesses that they’d “have to change how you operate Section 215, otherwise in two and a half years you’re not going to have it any more.” Ms. Lofgren seconded this assertion.
Rep. John Conyers, the ranking member of the committee, argued that bulk metadata collection “is unsustainable, it’s outrageous, and it must be stopped immediately.”
Despite the attention paid by the members to the violation of the rights of American citizens, little attention was given to the ongoing gross violation of the human rights of foreign individuals under Section 702 of the FAA. Worst was Congressman Steve King, who seems to lack any understanding of the international legal and moral commitments of the United States to universal human rights. Rep. King took pleasure in reminding the committee that every nation conducts foreign intelligence, and declared his lack of understanding as to “why we would be concerned with the privacy or manufactured constitutional rights of foreign persons communicating with other foreign persons.”
Despite Rep. King’s dissention, the hearing was a striking display of resistance and indignation from an otherwise passive Congress — at least on the subject of domestic surveillance. Perhaps if Congress had actually been fully briefed and empowered to oversee these programs, these abuses may have been prevented. But as the hearing made abundantly clear, Congress knew little more than the public.