At a hearing convened by the Senate Select Committee on Intelligence, chair of the committee, Democratic Senator Dianne Feinstein, ensured that a second round of questions would not be asked of the distinguished witnesses present—NSA Director Gen. Keith Alexander, Director of National Intelligence James Clapper and Assistant Attorney General James Cole.
Democratic Senator Ron Wyden, Democratic Senator Mark Udall and even Republican Senator Susan Collins had more questions to ask, but, instead of allowing more oversight to take place at an alleged oversight hearing, Feinstein suggested the committee get to the expert witnesses from the second panel. This effectively ensured Alexander, Clapper and Cole did not have to face Wyden or Udall again in the hearing.
Wyden submitted the questions he wanted to ask. Before getting to them, it is important to put the questions into context.
It is Wyden’s view, which he expressed yesterday, “Notwithstanding the extraordinary professionalism and patriotism of thousands of dedicated intelligence professionals, the leadership of your agency [NSA] 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.”
All of his questions should be interpreted as questions intended to offer the leadership in the intelligence community and Justice Department the opportunity to inform the American people of the truth about what they have been doing so that trust can be restored in Top Secret America. It is evident that Wyden knows part of the answer to some of these questions and does not believe the NSA should get away with being deceitful any longer.
These were the questions Feinstein stopped him from asking:
—Section 702 of FISA was intended to give the government new authority to target foreigners, but the executive branch has argued that the NSA should have the authority to deliberately go through communications collected under section 702 and conduct warrantless searches for the communications of individual Americans. Has the NSA ever conducted any of these warrantless searches for individual Americans’ communications?
—How long has the NSA used Patriot Act authorities to engage in the bulk collection of Americans’ records? And was this collection underway when Congress was voting to reauthorize the Patriot Act in late 2005 and early 2006?
—Over the last few years I have written multiple letters to Attorney General Holder regarding a particular opinion from the Justice Department’s Office of Legal Counsel that interprets common commercial service agreements. I have said that I believe that this opinion is inconsistent with the public’s understanding of the law, and that it needs to be both withdrawn and declassified. Despite multiple follow-ups from my staff I still have not received a response to any of these letters. Can you tell me when I can expect a response?
—One of the recurring debates about section 702 of FISA is whether the law should include stronger protections against reverse targeting, which is the prohibited practice of trying to spy on Americans by collecting the communications of foreigners that those Americans are believed to be talking to. Since the FISA Amendments Act was passed in 2008, have there been any instances of reverse targeting by NSA analysts?
Section 702 is the section of the Foreign Intelligence Surveillance Act (FISA) that gives the NSA the authority to pursue foreign targets without a warrant. The targets are supposed to be non-US citizens or individuals located outside the US when the information is collected.
As reported by The Guardian in August, the NSA has a “secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant, according to a top-secret document” provided by former NSA contractor and whistleblower Edward Snowden. This makes it possible for “individual Americans’ communications” to be hunted by “using their name or other identifying information.”
Wyden said of the revelation in August that “the law provides the NSA with a loophole potentially allowing ‘warrantless searches for the phone calls or emails of law-abiding Americans.”
When President Barack Obama proposed revisions to the federal government’s spying capabilities during the same month, this loophole was completely ignored.
Wyden’s second question is an effort to pin down whether intelligence agency leaders hid the existence of a bulk collection program under the PATRIOT Act when it was being reauthorized in 2005-2006. This question had previously been asked of Clapper and he answered in July:
NSA first began obtaining telephony metadata pursuant to Section 215 of the Patriot Act, as described above, in May of 2006. As you are aware, the FISA Court reviews and reauthorizes this program approximately every 90 days. In addition, this program was operational and, as discussed above, Congress was fully aware of it when it reauthorized the legislation for an additional five year period in 2011. Additional information is provided in the classified supplement.
The statement that “Congress was fully aware” prior to reauthorization in 2011 is not true. The House Intelligence Committee hid a key document. But, to Wyden’s question about the history of the program, this answer was not satisfactory. And, nearly two months later, he has not received the answer he wants and he does not think the public has received the answer it deserves. (Udall shares Wyden’s view, which is why he asked Clapper to declassify a history of the bulk collection program.)
To Wyden’s third question, the government has argued in court that a “cell phone customer has no privacy interest in historical cell-site records because they are business records created and held by a cell phone provider.” The government has also maintained, “A customer has no Fourth Amendment privacy interest in business records created and held by a third party.”
Beyond the fact that the Justice Department is improperly withholding this opinion from Wyden, which he and other senators have repeatedly requested access to read, it seems clear that the department which produces advices on questions of law for the president and departments in the Executive Branch has crafted a legal opinion that suggests when Americans sign common commercial service agreements privacy rights are forfeited. This secret legal interpretation would give the government the authority to intrude on Americans’ lives by engaging in a broad range of warrantless data collection.
As to Wyden’s fourth question, it addresses “reverse targeting,” which is the practice of getting around current legislative prohibitions against collecting US citizens’ communications by targeting foreigners in order to obtain their communications with Americans.
It is strongly believed that this is what the NSA was probably doing with the PRISM program revealed by Snowden, where the government was collecting information from Google, Microsoft and other major Internet companies.
What these questions suggest is that the NSA has (a) collected or developed an unimplemented program to collect cell phone location data in bulk (b) sought to preserve a loophole to engage in surveillance to access US citizens’ communications it knows it is not supposed to be authorized to access (c) operated a bulk collection program under the PATRIOT Act longer than publicly admitted and/or (d) exercised operations under cover of a secret legal authority the Justice Department claims exists to allow all manner of surveillance through cell phone tracking or data collection.
These questions—including his question about whether the NSA has ever collected or made plans to collect Americans’ cellphone location data—are all questions Wyden believes intelligence agency leaders should be required to publicly answer.
In sharp contrast, Feinstein and Republican Senator Saxby Chambliss, vice chairman of the Senate intelligence committee, are zealously committed to covering for the powerful as they squirm from the deserved scrutiny they are receiving. They have also opted to patronize the public for having concerns about NSA spying, suggesting “the public has a misconception, and that must be corrected.” And they have promoted the NSA’s view that the media has sensationalized and inaccurately reported on the leaks, which is unbelievable since The Guardian and Washington Post have documents to back up the truth that has been published.