New declassified documents, new legislation and new leaks all set Wednesday the stage for a long Senate hearing, where lawmakers probed legal and intelligence officials for yet more specific information on the government’s surveillance programs.
In quick succession Wednesday morning, the Office of the Director of National Intelligence declassified new documents detailing the government’s phone data gathering program, the Guardian published a classified presentation outlining a program which mines Internet browsing information and the Senate Judiciary Committee kicked off a hearing on the entire subject matter.
Lawmakers pressed for details on exactly how many individual phone records were searched each year, specifically what was required to conduct that search and if those searches were critical to foiling terrorism. They also used the session as a platform to announce two new bills, set to drop tomorrow: one to overhaul the Foreign Intelligence Surveillance Court process from Sen. Richard Blumenthal, D-Conn., and one to force the annual disclosure of surveillance program statistics from Sen. Al Franken, D-Minn.
“Again, you get this ad hoc transparency,” Franken said to Robert Litt, DNI’s general counsel, regarding the White House’s intermittent release of information on the programs.
“I couldn’t agree with you more,” Litt said, adding the administration had been discussing which legal orders and briefings it could declassify since the existence of the program was leaked.
But the latest documents included little new information. Two congressional briefings (2009 and 2011) explained the programs in broad strokes, and an April Foreign Intelligence Surveillance Court ruling reiterated the same legal standard for searching individual phone logs Deputy Attorney General James Cole detailed at a House hearing two weeks ago (there must be “facts giving rise to a reasonable, articulable suspicion” the number is associated with a terrorist organization).
And just as the White House dropped these documents, it was hit with a leaked 2008 NSA presentation, courtesy of former National Security Agency contractor Edward Snowden. The presentation explains the XKeyscore program, which can monitor and collect Internet browsing activity, including Web chats. According to the presentation, the program focused on foreign Internet activity and had gathered information leading to the capture of more than 300 terrorists.
“The rumor is always across town before the truth can even get its boots on,” said Sen. Sheldon Whitehouse, D-R.I., calling the executive branch “one-sided” regarding overclassification. “You’ve lived that experience in the last few months. This is a recurring problem.”
And if the information disclosed by the government is the complete truth, committee Chairman Patrick Leahy, D-Vt., was not satisfied. NSA recently released 54 thwarted terrorist plots aided by surveillance programs. But Leahy pressed NSA Deputy Director John Inglis on whether the domestic phone record collection program was actually necessary to each one of those cases.
“We need straight answers, and I don’t think we’re getting it,” he said.
Of the 54 cases, only 13 occurred within the U.S., and Inglis acknowledge only one of those absolutely required the presence of the phone-logging program. But it did contribute to 12 of the 13 investigations, he said, calling the program one of “a range of tools at your disposal” and “complementary” to other investigatory techniques.
But Sen. Dianne Feinstein, D-Calif., who also chairs the Senate Intelligence Committee, stood up for the NSA’s actions. “We would place the nation in jeopardy if we were to end these two programs,” she said. Only 22 people have access to the phone records database, she said, and only 12 referrals were made to FBI based on database searches in 2012, resulting in the monitoring of fewer than 500 phone numbers in total that year.
Cole estimated only .0001 percent of all metadata collected is actually accessed in a phone database search; fewer than 300 numbers were approved for investigating in 2012, Inglis said.
Still, Feinstein wants the government to regularly disclose all of those exact numbers. Franken said he intended to introduce a bill Thursday to do just that. The bill would also allow companies to release the number of surveillance orders they receive from the government, and the number of people affected by those orders.
“When almost everything about these programs is secret, the American public has no way of knowing if we’re getting those programs right,” Franken said.
And despite the minuscule amount of data actually accessed by government officials, Blumenthal expressed concerns over how the FISA court approves the decision to access the information. He plans to introduce two pieces of legislation Thursday: one to make FISA court more adversarial, another to alter the appointment process of FISA court judges.
Currently, there is no representative arguing against the government when it is seeking to monitor an individual’s domestic phone records. And the court is overseen by a rotating cast of 11 judges serving 7-year terms.
“The current design of the FISA court stacks the deck against the protection of our civil liberties and can be improved without sacrificing speed or security,” he said.
The idea received some pushback from Stewart Baker, a partner with Steptoe & Johnson, who testified on the hearing’s second panel, for which only three senators — and soon, only Blumenthal — stayed. There are some logistical challenges if the FISA court brings in outside counsel, Baker told Blumenthal.
“Who or what is this person supposed to be representing?” he asked. “Are they representing terrorists? Are they representing the court? Are they representing some abstract interest in civil liberties? Or are we just going to let them decide? We got rid of the independent council precisely because we were uneasy with having private parties just make up their own public policy.”
