Gen. Keith Alexander, NSA Director, testifying before the Senate Select Committee on Intelligence

The Senate Select Committee on Intelligence held a hearing on possible changes to surveillance programs under the Foreign Intelligence Surveillance Act. The National Security Agency’s director, the Director of National Intelligence and the assistant attorney general testified. The committee also heard from two experts.

It was a sham of a hearing, with chairwoman Sen. Dianne Feinstein opening up the hearing by giving a statement where she invoked recent terrorism in Kenya and proclaimed her belief that everything former NSA contractor Edward Snowden has exposed—which has forced senators to appear to be interested in oversight—are “lawful, effective and conducted with careful oversight.”

Feinstein proceeded to present multiple reforms that would potentially give off the appearance of reform but would scarcely alter the powers given to the NSA. She even advocated for an expansion of surveillance powers so NSA could target “roamers.” (Marcy Wheeler has details here.)

Leaks, Feinstein said, and how “those leaks had been portrayed in the media” had led to unfortunate public skepticism and distrust.

Multiple senators used their time to express the opinion that the media was to blame for sensationalizing what Snowden had exposed when there was nothing corrupt going on at the NSA and oversight was occurring properly.

NSA Director Gen. Keith Alexander stated during the hearing, “We need to step away from sensational headlines and focus on the facts.” The suggestion was that if Americans really understood what the NSA was doing they would not be concerned. The joint statement submitted by Alexander, Director of National Intelligence James Clapper, and Assistant Attorney General James Cole accused the media of inaccurately reporting on the scope of intelligence collection efforts. They emphasized how the content of calls are not collected and stored. But, that is understood by media and not why there has been a focus on the scope of the bulk collection program.

Two senators managed to use their time appropriately without giving speeches about how they were worried the American people would never trust the NSA again because of Snowden. Both Senator Mark Udall and Senator Ron Wyden, who have proposed surveillance reform, had good questions prepared.

“When I began serving on this committee two years ago, I determined early on that our surveillance laws needed reform,” Udall began. “Since then, I’ve been proud to lead the fight along with Senator Wyden and others. Now that more details of the NSA’s surveillance programs and their legal justifications have emerged, we’re seeing a growing consensus” that the status quo is unacceptable.

Udall said recently released documents “lay out the FISA Court’s interpretation of relevance to mean that the government can collect the phone of records of million records on a daily basis.” He asked if there were any “upper limits” on the number of phone records that the NSA could collect and whether it was “the goal of the NSA to collect the phone records of all Americans.” He also asked if the FISA Court’s opinion gives the NSA the authority to collect other kinds of records in bulk.

Alexander told Udall there was “no upper limit.”

To whether it was a goal of the NSA collect the records of all Americans, he replied, “I believe it is in the nation’s best interest to put all the phone records into a lock box that we can search when the nation needs to do it, yes. And the reason and the way we do it and the way we comply would ensure better security for this nation.”

This refers to Section 215 of the PATRIOT Act, which allows for bulk data collection—what the American Civil Liberties Union calls a massive “domestic call tracking” program. For at least the past seven years, this sweeping program has been operating and apparently the only thing the program has caught is an individual who sent less than $10,000 to the terrorist group, al Shabaab, in Somalia. In all other cases, other collection methods could have led to the acquiring of data necessary for the discovery of plots or the thwarting of potential terrorist attacks.

In addition to violating the privacy of millions of Americans, the NSA’s hoarding complex, its commitment to building the haystack bigger and bigger and bigger, may inhibit the ability of the US government to prevent terrorism. David Headley, Abdulhakim Mujahid Muhammad, Major Nidal Hasan, Umar Farouk Abdulmutallab and Tamerlan Tsarnaev are some of the terrorists who the US intelligence community failed to prevent from carrying out terrorist attacks.  The sheer amount of data being collected played a key role in overwhelming analysts and led to a failure to connect the dots before the attacks.

Higher standards for collecting data would mean there was less to sift through, but, as Clapper said, the intelligence community wants to collect all the data to have “peace of mind.” It helps intelligence agency leaders feel emotionally confident that they are doing all that is necessary to protect the nation, but their feeling good does not guarantee America will be protected from the next attack.

To the question of whether other records could be collected in bulk, Cole said they could but it depended on the purpose of the collection. He also said the bulk collection is setup to store call detail records and may not be setup to handle other records.

The truth is if the NSA wants to collect these records they will find a way to argue they are relevant to terrorism investigations and begin to collect; lack of hardware won’t stop that mission creep. Also, Alexander said not under this program—Section 215 under the PATRIOT Act. There are other programs under which the NSA is claiming the authority to collect cell site location data.

When it was Wyden’s turn to ask questions, he began, “Any government official who thought that the intrusive, constitutionally-flawed surveillance system would never be disclosed was ignoring history.”

“As senators pointed out on the Senate floor two years ago, even a quick read of history shows that in America the truth always manages to come out,” he said. “Notwithstanding the extraordinary professionalism and patriotism of thousands of dedicated intelligence professionals, the leadership of your agency built an intelligence collection system that repeatedly deceived the American people. Time and time again, the American people were told one thing about domestic surveillance in public forums while government agencies did something else in private. Now, these secret interpretations of the law and violations of constitutional rights have become public and your agencies face terrible consequences that were not planned for.”

Wyden contended that this “loss of trust in the intelligence apparatus” undermined the ability to “collect intelligence on real threats.” He then stated, “Joint testimony today blames media and others, but the fact is this could have been avoided if the intelligence leadership had been straight with the American people and not acted like exceptions that had been practiced for years could last forever.”

His question was the following: has the NSA ever collected or made any plans to collect Americans’ cell site information in bulk?

Alexander answered but what he wanted to say was a repeat of an answer he had already heard from Clapper in a response to questions back in July. Wyden had obviously not been satisfied with that answer or else he would not have been asking Alexander this question.

Wyden asked again, “Has the NSA ever collected or ever made any plans to collect Americans’ cell site information?” Alexander said something about the Foreign Intelligence Surveillance Court needing notice if the NSA wanted to collect cell site location records. He then said he did not want to put anything out that would be classified.

“If you’re responding to my question by not answering it because you think that’s a classified matter, that is certainly your right,” Wyden stated. “We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell site information.”

Wyden gave the NSA a clear opportunity to be upfront about whether it was collecting cell site location data on all Americans or had operated a program that perhaps was discontinued or had developed a program that was never put into place because it ran into logistical problems, etc. Alexander consciously chose to continue to conceal.

It was very clear that Wyden was not just asking this question on some hunch. He has classified documentation and would like to see that documentation made public before it comes out in The Guardian in an article by Glenn Greenwald that contains details from a document provided to the newspaper by Snowden.

Udall also asked Clapper, “Would you agree to declassify the full history of the bulk collection program?” Clapper said he wanted to read the documents that might be disclosed get “general advice from counsel” before agreeing to push for this kind of transparency.

Both Udall and Wyden had more questions. Unlike senators that asked no questions, Udall said, “My time has run out. I have many, many more questions.” He was hoping for another round of questions.

What happened?

Feinstein saved the intelligence agency heads from having to answer any more questions and nixed a second round of questions by proposing that the two experts scheduled to testify, Benjamin Wittes of Lawfare and Tim Edgar, a privacy lawyer with past experience working in the White House, start their testimony before senators asked any more questions.

It was a great proposal for senators who had no further plans to challenge the intelligence agency leaders here before the committee today. For Udall and Wyden, who genuinely seem to care about what the NSA may be getting away with doing in secret, it was shameful, especially since she had previously limited senators to five minutes of questioning.

Wyden pressing Alexander on collection of geolocation data: