Posted by on September 27, 2013 in Blog

By Isaac Levey
Legal Fellow

On Thursday, the Senate Intelligence Committee held a rare open hearing on proposals to reform the Foreign Intelligence Surveillance Act of 1978 (FISA). The proposals arise from the ongoing controversy over the National Security Agency (NSA)’s bulk collection of Americans’ phone records revealed by whistleblower Edward Snowden this summer. Testifying at the hearing from the Obama Administration were Director of National Intelligence (DNI) James Clapper; NSA Director Keith Alexander; and Deputy Attorney General James Cole. The nongovernmental witnesses were Benjamin Wittes, a senior fellow at the Brookings Institution and editor of the popular Lawfare blog; and Timothy Edgar, a civil liberties lawyer who has worked for both the American Civil Liberties Union (ACLU) and the Government.

For those who hoped this rare glimpse into the workings of the Intelligence Committee would be enlightening or informative, the hearing was rather disappointing. The Senators who were on the Committee – perhaps jealous that, unlike most Members of Congress, they don’t usually have an opportunity to grandstand – seemed to prefer making speeches to actually asking questions of the witnesses. When they did ask questions of the intelligence committee witnesses, the Senators generally lavished praise on the NSA and its programs; virulently condemned the news media for disclosing the programs and the American people for having the temerity to be concerned about them; and, as in the case of Vice Chairman Saxby Chambliss (R-Ga.), asked weirdly irrelevant questions about prosecuting Snowden. There was, unfortunately, very little discussion between the witnesses and the Senators as to the scope of FISA; possible reforms to the Foreign Intelligence Surveillance Court (FISC); and that court’s recently declassified decision upholding bulk data collection.

The only Senators who actually asked important questions of the IC officers were Ron Wyden (D-Or.) and Mark Udall (D-Colo.), both of whom have previously introduced various intelligence reform measures we’ve discussed before. In a testy exchange with Alexander, Wyden repeatedly inquired whether NSA had ever tracked cell site location information (CSLI), which as the name suggests allows tracking of individuals’ location using cell phones. Alexander reiterated that current NSA rules do not authorize this kind of tracking for Americans, and the recently declassified FISC decision repeatedly emphasized that it was not authorizing CSLI tracking, but refused to discuss whether the tracking had taken place before, or whether NSA had ever planned for that kind of tracking. Alexander was clearly hedging his answers, undoubtedly wanting to avoid a repeat of what happened to his boss Clapper. At a hearing in March, Clapper testified – also in response to an inquiry from Senator Wyden – that the NSA didn’t “collect any type of data at all on millions or hundreds of millions of Americans.” In June, when Snowden’s leaks surfaced and revealed that testimony to be false, Clapper had to send a letter apologizing for his “clearly erroneous” testimony, and has fielded calls for his resignation ever since. Alexander, undoubtedly with this incident in his mind, didn’t give Wyden a complete answer.

The other depressingly revealing moment came from questioning by Senator Udall. Alexander testified that there is no limit to the amount of call data the NSA thinks it can collect under FISA, and that the NSA’s goal is to have a secure database of all Americans’ call records. To be clear, none of these programs authorize listening in on calls, and more importantly, rigorous safeguards are in place to prevent unauthorized access to the information by NSA’s officers. Instead of the traditional investigative procedure, which requires judicial approval and individualized suspicion before the evidence is collected, the NSA collects all the information they can, and then simply only allows it to be “queried” on the basis of individual suspicion of wrongdoing. Still, the potential for abuse, especially given a significant lack of oversight, is troublingly high.

But the news out of the hearing wasn’t all bad. In particular, the joint statement of the Administration’s representatives signaled some willingness to create a more transparent or accountable process to oversee data collection. They suggested that they would be open to a proposal, one version of which was just introduced by Rep. Adam Schiff (D-Cal.), to create a “public advocate” or independent lawyer to argue important cases before FISC. This position would be a sort of permanent amicus curiae (to use legal parlance), a “friend of the court” who would present views opposing the Government in significant cases. Courts frequently appoint advocates of this kind when they are worried no party will speak for a group that has an interest in the case, and this “public advocate” would be quite similar. This is a small step, and I’d prefer to focus on having more FISC opinions revealed to the public: at least personally, I have big problems as an almost-lawyer with the idea of so much law being made in secret. The IC officers didn’t seem particularly inclined to writing more transparency into the law.

In sum, the Intelligence Committee hearing was disappointing. The efforts of Senators Wyden and Udall notwithstanding, the members of the Committee seemed to prefer grandstanding to policy discussions. Perhaps Chairwoman Dianne Feinstein (D-Cal.), and others like her who support the current surveillance programs, are correct in what they think the NSA should be allowed to do, but it would have been nice to see her actually discuss the way the programs work, and how they could be improved, with the men who actually run them. Instead, the Committee seemed content to just reiterate how much its members love America and our intelligence officers. They can, and should, do better.

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