Skeptical Congress turns its spycam on NSA surveillance

McClatchy Washington BureauJuly 17, 2013 

— In an unusually critical oversight hearing Wednesday, lawmakers from both parties warned national security officials that they must change their use of sweeping National Security Agency surveillance programs or face losing the provisions of the Foreign Intelligence Surveillance Act that have allowed for the agency’s mass collection of telephone metadata.

“Section 215 expires at the end of 2015, and unless you realize you’ve got a problem, that is not going to be renewed,” Rep. Jim Sensenbrenner, R-Wis., author of the USA Patriot Act, threatened during the hearing before the House of Representatives Judiciary Committee.

“It’s got to be changed, and you’ve got to change how you operate section 215. Otherwise, in two and a half years, you’re not going to have it anymore.”

More than a month after former defense contractor Edward Snowden revealed the NSA’s sweeping data collection, lawmakers attacked the veil of secrecy that separates the agency’s surveillance operations from the public, and they challenged the idea of adequate oversight by the court that reviews applications for warrants under the Foreign Intelligence Surveillance Act.

The secret court, established in the 1978 act, is composed of 11 judges appointed by the chief justice of the Supreme Court. Despite defenders of the NSA’s programs hailing the court as balanced judicial oversight, critics have called it a rubber stamp, citing annual reports filed to Congress that show it’s denied only 11 of 33,900 surveillance requests since it was established.

Deputy Attorney General James Cole and NSA Deputy Director John C. Inglis cited the court’s oversight in defending the constitutionality of the NSA’s surveillance activities.

In defending the court’s jurisdiction, Inglis also suggested that the agency’s data sweeps extend further than previously stated, saying the court has allowed for data analysis extending “two or three hops” beyond an original suspicious telephone number. NSA officials had said previously that data mining was limited to two hops, meaning it could look only at the numbers dialed from the original suspicious one and the numbers dialed by that second set of numbers.

Rep. Jerrold Nadler, D-N.Y., challenged Cole’s defense of the program’s constitutionality, and he said the secrecy in which the court functioned negated the validity of its review.

“The fact that a secret court unaccountable to public knowledge of what it’s doing . . . may join you in misusing or abusing the statutes is of no comfort whatsoever,” Nadler said. “So to tell me you go to the FISA court is irrelevant.”

Scrutiny of the court has grown on Capitol Hill since Snowden’s revelations. Although many lawmakers have defended the court’s oversight, steps are being taken to change its formalities. The latest is from a senior member of the House Intelligence Committee, Adam Schiff, D-Calif., who introduced a bill Wednesday that would require presidential appointment and Senate approval of judges on the court.

Despite dogged questions on the opacity of NSA’s surveillance, officials tried to explain why the general nature of the programs needed to remain classified, and they defended decisions to keep the veil of secrecy in place. Lawmakers, however, pushed for greater openness, saying an operation as massive as the NSA’s cellphone sweep couldn’t have stayed secret forever.

“Why not simply have told the American people that we’re engaging in this type of activity in terms of gathering information? It doesn’t give away any national security secrets, but it might have engendered greater confidence in the public,” said Committee Chairman Robert Goodlatte, R-Va. “Did you really think this could be kept secret?”

Robert Litt of the Office of the Director of National Intelligence struggled to find an answer.

“Well. Uh . . . we tried.”

Email: awatkins@mcclatchydc.com; Twitter: @alimariewatkins

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