House Judiciary Committee Pushes Obama Administration Officials On Surveillance Overreach
BY Sarah Lai Stirland | Wednesday, July 17 2013
Members of the House Judiciary Committee from both sides of the political aisle on Wednesday peppered Obama administration officials with detailed questions over the legality of its surveillance programs with an intensity and focus that suggests that several of them are actively working on legislation that would rein in the extent of that surveillance.
House Judiciary Committee Chairman Bob Goodlatte, a Republican from Virginia, opened the hearing with a cautionary note, pointing to the recent Boston Marathon bombings.
"We cannot prevent terrorist attacks unless we can first identify and then intercept the terrorists," he said in his opening statement. "However, Congress must ensure that the laws we have enacted are executed in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties. We must ensure that America’s intelligence gathering system that has the trust of the American people.”
But it became apparent during the hearing that the officials did not enjoy the trust of many committee members. Nor did many of those members think that the National Security Agency and the Justice Department had colored within the lines of U.S. surveillance law in the wake of the revelations that the National Security Agency is collecting petabytes of metadata on Americans' phone calls, as well as the content of foreigners' online communications.
"We never — at any point during this debate — approved the type of unchecked, sweeping surveillance of United States citizens employed by our government in the name of fighting the war on terrorism," said John Conyers (D-Mich.), the committee's top Democrat, in his opening statement.
Conyers' statement was the first of several coming from both his Democratic and Republican peers Wednesday morning.
Much of the questioning on Wednesday morning focused on ferreting out the extent to which the NSA is stretching the relevant portions of the USA PATRIOT Act and the Foreign Intelligence Surveillance Act to track suspects.
Rep. Jim Sensenbrenner (R-Wisc.), author of the USA PATRIOT Act and the Judiciary Committee's former chairman, referenced a Justice Department response that he received recently about how the DOJ interprets section 215 of the PATRIOT Act, the section that the NSA has been relying on to legally to access and store the phone call metadata.
Under that section, Congress included language that enables law enforcement authorities to access information about suspects that they deem relevant. The idea at the time was that the Foreign Intelligence Surveillance Court would provide oversight to determine what information would be relevant to an investigation, thus providing some accountability into the process.
During Wednesday's hearing, Sensenbrenner suggested that that wasn't happening.
"Part of that letter said that in effect, said that all of the metadata associated with the phone calls had to be collected pursuant to the court order, and then it would be up to the security apparatus to determine which needles in that large haystack were relevant to a foreign terrorist investigation," he noted during the hearing. "Now doesn't that mean, that instead of the court making the determination of relevance, it's the security apparatus that makes a determination of what's relevant, and which of the less than 300 series of phone calls get picked out, according to your testimony?"
Deputy Attorney General James Cole insisted that the FISA court does provide oversight because it provides general guidelines as to the terms on which NSA analysts are allowed to access all that metadata about suspects. The authority has to be reviewed every three months and the NSA has to report back to the court on its activities.
Sensenbrenner disputed Cole's characterization of oversight.
"If there was a criminal trial involved, it would be the court that would be determining the relevance standard pursuant to subpoena or proffered evidence, wouldn't it?" he asked, not letting Cole respond.
Instead, he bluntly told Cole that the NSA had to rethink how it conducts its surveillance if it wants to hold onto the power that it currently enjoys.
"I've been the author of the PATRIOT Act, and the PATRIOT re-authorization of 2006," Sensenbrenner continued. "Mr. Conyers was correct in saying why the relevance standard was put in, and that was an attempt to limit what the intelligence community could be able to get pursuant to section 215."
"It appears to me that, according to this letter, and according to the testimony of FBI Director Mueller, 'relevance' was an expansion of what could happen, rather than a limitation when the law was amended from when 'relevant' wasn't included. Doesn't that make a mockery of the law when you're trying to have it both ways?" Sensenbrenner asked. "Section 215 expires at the end of 2015, and unless you realize you got a problem, that is not going to be renewed. There are not the votes in the House to renew section 215, and then you're going to lose the business record access provision of the PATRIOT Act entirely. It's got to be changed. You've got to change the way you operate section 215 or in a year and a half or two years, you're not going to have it any more."
Sensenbrenner was just one of several committee members who suggested that existing law and surveillance processes needs to be revamped. Other skeptical members with detailed questions about the way the NSA collects information included Reps. Suzan DelBene, (D-Wash.), Ted Deutsch, (D-Fla.) and Jason Chavetz, (R-Utah.)
They had so many questions about the nature of the NSA's operations, in fact, that Goodlatte promised them that they would have to reconvene in a classified hearing to follow-up with the details.
As Philip Bump notes at The Atlantic, one new element that emerged from the grilling was how extensively investigators comb through suspects' networks of associates. The NSA's Deputy Director John C. Inglis said that investigators look at the metadata associated with calls "two or three hops," away from terror suspects, meaning that associates of the associates of terror suspects could come under surveillance from national security authorities.