[Infowarrior] - Intelligence oversight has some limits in Congress

[Richard Forno]

Intelligence oversight has some limits in Congress
By: Tony Romm
October 10, 2013 05:04 AM EDT

http://dyn.politico.com/printstory.cfm?uuid=6800326D-C598-4CDA-A1EF-B18C9535A6BD

The White House insists members of Congress knew full well about the National Security Agency’s almost unabridged ability to scan phone logs and Internet chats for terrorist threats — and the potential that Americans’ communications could be caught in the fray.

But evidence of the NSA’s many privacy missteps wasn’t widely shared on Capitol Hill, even during crucial moments when Congress voted to reauthorize the government’s controversial surveillance powers.

One Obama administration report provided to lawmakers last year, for example, only opaquely referenced the NSA’s unlawful collection of thousands of Americans’ emails. The document, declassified this fall, didn’t mention that a secret court had rebuked the agency for its misleading statements.

Adding to the trouble, House leaders possessing the oversight report didn’t explicitly advertise it to members, and some lawmakers in both chambers who did see it weren’t allowed to take notes out of the room, according to documents and congressional staffers. Both the House and Senate still later in 2012 reauthorized some powers under the Foreign  Intelligence Surveillance Act, or FISA, one of the laws in question in light of leaks from Edward Snowden.

At a time when Congress is rethinking the rules that govern the NSA — and whether or how to tighten them — the Hill’s previous lapses raise as many questions about the intelligence agency as they do about congressional oversight.

The agency’s chief defenders stress that Congress has done its part. Sen. Dianne Feinstein (D-Calif.), the powerful leader of the chamber’s Intelligence Committee, said at a hearing this month her panel “informed all senators of additional classified information” as they weighed the NSA’s powers. Rep. Mike Rogers (R-Mich.), her counterpart in the House, emphasized at a POLITICO event on Tuesday that surveillance programs are “some of the most overseen programs in the government.”

But civil liberties leaders see it much differently. “If a very small number of people on Capitol Hill who are closely tied to the intelligence committees have the data, and others do not, then we can’t have the kind of democratic debate we need,” said Leslie Harris, president and CEO of the Center for Democracy and Technology, adding: “Secret law and secret oversight are an oxymoron.”

The White House did not comment for this story.

One mishap — dating to 2011 — perhaps precisely illustrates the problem.

At issue was a ruling by the so-called FISA court, which reviews government surveillance requests. A judge in 2011 faulted the NSA for unlawfully lapping up some Americans’ online communications over a three-year period, and forced the agency to change its data collection and retention practices. The mishap had been classified until the Obama administration — under pressure to be more transparent — revealed at the end of August the redacted court orders and opinions. Top White House intelligence officials at the time insisted it wasn’t a “back door or a surprise,” as Congress had been properly informed about the program’s risks from the start.

The House and Senate’s Judiciary and Intelligence committees had access to all of the related NSA court documents and decisions, according to James Clapper, the director of National Intelligence, who explained the process in a memo also released in August. In addition, he said the administration in May 2012 furnished a white paper to the House and Senate Intelligence committees, which were explicitly asked to make it available to all members of Congress. That document detailed the government’s checks and balances at the NSA.

The Obama administration’s communication with the Hill, however, didn’t tell the story of an agency rebuked by the FISA court in 2011 for “a substantial misrepresentation regarding the scope of a major collection program.”

Instead, lawmakers got only one paragraph about the mishap, which had been obscured with technical details about “multi-communication transactions.” Meanwhile, the administration touted the incident as a case study defending the NSA’s existing oversight mechanisms.

Additionally, many Hill staff sources interviewed by POLITICO noted it may not have been easy for their bosses to digest that report: Lawmakers in many cases weren’t able to bring their own legal advisers or take notes, and they had to view the document in a special part of the Capitol reserved for classified material.

Moreover, the House leaders who held the keys to the report did not loudly broadcast its existence to the rest of the chamber. The chairman of the Intelligence Committee, Rogers, and the panel’s ranking Democrat, Dutch Ruppersberger of Maryland, declined to say whether they even had sent a letter in 2012 informing members there had been a critical document to view. Hill sources say they don’t recall anything of the sort.

Party leaders did hold unclassified and classified briefings on FISA, but they occurred just days before the House’s September 2012 vote to reauthorize the law. The Republican briefing, for example, occurred only two days before the House approved the FISA Amendments Act, according to an invite obtained by POLITICO. Yet nowhere in the message, sent Sept. 7, 2012, is any mention of the White House white paper on FISA oversight — the document that detailed how the agency had erred in collecting U.S. communications.

Committee leaders, though, stress they acted appropriately. “Members were notified of the contents of the white paper through the briefing,” Ruppersberger told POLITICO. “We felt that a briefing was an appropriate way to notify members of this important issue so that they would have the opportunity to get all of their questions answered immediately.”

The congressman continued: “Some members chose to take advantage of a briefing and some did not. We thought offering a briefing shortly before the vote was held would work best with members’ busy schedules and keep the issue fresh in their minds as they cast their vote.”

A spokeswoman for Rogers also defended the committee’s conduct. “The House Intelligence Committee makes it a top priority to inform members about the intelligence issues on which members must vote,” she said. “This process is always conducted consistent with the committee’s legal obligation to carefully protect the sensitive intelligence sources and methods that our intelligence agencies use to keep the American people safe.”

Still, the House Intelligence Committee has faced criticism in the past for failing to share key documents with lawmakers.

When Congress earlier in 2011 weighed whether to reauthorize the PATRIOT Act, which allows the government to obtain phone call logs, the administration similarly shared new information with the Hill’s intelligence leaders — asking them at the time to communicate it to their colleagues. Yet the House’s intelligence chiefs again kept those documents close to the vest.

The Washington Post first revealed that lapse in PATRIOT Act oversight in August, which at the time Rogers acknowledged “very few members” had taken advantage of any related briefing opportunities. That same month, the FISA court issued a legal opinion that reauthorized the NSA’s ability to collect bulk telephone call logs under the law. As it did, a judge pointed to congressional oversight while defending the government’s request.

Responding to the criticism, Rogers’s office told POLITICO that the committee “hosted classified briefings” on both FISA and the PATRIOT Act.”

For its part, the Senate Intelligence Committee did notify members in a June 19 “Dear Colleague” letter that it had a “classified document that provides an overview of these expiring provisions of FISA,” according to a copy obtained by POLITICO.

Perhaps for security reasons, the missive — signed by Feinstein and the Senate Intelligence Committee’s ranking Republican, Sen. Saxby Chambliss (R-Ga.) — didn’t call attention to the fact the report vaguely detailed the NSA’s compliance troubles. The report, at the time, had been classified. Since declassified, much of the document remains heavily redacted.

The two lawmakers did not comment on record for this story. But an Intelligence Committee aide told POLITICO the committee has been willing to make documents available to any lawmakers who asked — including the classified, 2011 FISA court opinion.

One of the panel’s Republican aides agreed — the information was available. But the staffer still acknowledged a recognition on the committee that it “should do more to independently verify that NSA’s operations are appropriate and its reports of compliance incidents are accurate.”

Scrutiny may only intensify as Congress embarks on a debate that could result in new law that greatly restrains the NSA’s surveillance authorities.

However, the intelligence committees historically complete their work in secret, with the process of writing and marking up legislation happening entirely behind closed doors to protect release of government secrets. Moreover, the committee still has to release full text of any new legislation — though the bill will be available once a markup occurs, and before anything comes to the Senate floor.

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