Against a theatrical backdrop — a packed hearing room with a line to get in — members of Congress dressed down intelligence officials for their controversial phone record gathering programs. “A very serious violation of the law,” as Rep. John Conyers, D-Mich., put it.
Officials from the Justice Department, National Security Agency, Office of the Director of National Intelligence and the FBI repeatedly defended the programs as well within the bounds of congressional law and under strict oversight from all three branches of government during Wednesday’s House Judiciary Committee hearing.
But members of the committee weren’t having it.
“Wait a minute, we’re handling this discussion,” Conyers interrupted.
“Oh, come on,” said Rep. Jerrold Nadler, D-N.Y., cutting off an answer.
“At the risk of piling on… ” began Rep. Jim Sensenbrenner, R-Wis.
The basic dispute between the two sides boiled down to whether NSA’s program to gather phone records metadata — the time, duration and number dialed (but not content) of millions of phone calls — truly meets the “relevancy” standard set in Section 215 of the Patriot Act. The section — updated in the Patriot Act’s 2005 reauthorization — gives the government authority to collect phone records if they are “relevant” to terrorism investigations.
DOJ’s Deputy Attorney General James Cole said his department will not look at a single phone number’s records, unless it has a “reasonable, articulable suspicion that a phone number is involved with one of these specified terrorist organizations,” he said. “Then and only then … can you query this database to find out what other phone numbers that specific phone number has been in contact with.”
NSA will also conduct what’s called a “three-hop analysis,” admitted NSA Deputy Director John Inglis for the first time. If the agency has the phone record of a suspected terrorist, it will then look at the phone data of all of that person’s contacts, then all of those people’s contacts, and then all of those people’s contacts.
The metadata is kept for five years before being destroyed.
But it was the mere existence of the database with which the lawmakers took issue. The dragnet of millions of phone records is a Fourth Amendment violation, Conyers argued.
“I maintain the Fourth Amendment — to be free from unreasonable search and seizure — means the metadata collected in this fashion can amount to a Fourth Amendment violation before you do anything with it,” he said.
Cole later countered: “If you’re looking for a needle in the haystack, you have to have the haystack,” he said.
The officials outlined the restrictions on the program — NSA gives ongoing briefings to select members of Congress, the executive branch regularly reviews the program and the Foreign Intelligence Surveillance Act court must renew all information gathering orders every 90 days. The Supreme Court also established in a 1979 case, Smith v. Maryland, that there was no reasonable expectation of privacy regarding the numbers dialed for a phone call.
“The extent to which this nation involves the courts in foreign intelligence surveillance goes well beyond what is required by the Fourth Amendment, and, I think, beyond what other countries require of their intelligence services,” said Robert Litt, ODNI’s general counsel.
But Rep. Zoe Lofgren, D-Calif., derided an annual “report” given to Congress on the programs authorized by Section 215. It was shorter than a single page, she said, and had fewer than eight sentences. And the number of applications submitted to the FISA court does not reflect the number of phone records gathered.
The intelligence agencies have taken the “relevant” clause — meant to restrict information gathering — and instead expanded information gathering, Sensenbrenner said.
“Section 215 expires at the end of 2015, and unless you realize you’ve got a problem, it’s not going to be renewed,” he said. “There are not the votes in the House. It’s got to be changed, and you’ve got to change how you operate section 215.”
After nearly 45 minutes of battering from the pulpit, the witnesses finally got a reprieve from Rep. Spencer Bachus, R-Ala.
“I’m satisfied at least from what limited knowledge I have that the motivation behind this was legitimate and necessary for our national security,” he began.
But even he couldn’t summon complete faith in the program.
“The Star Chamber in England started out as very good, and was very popular with the people,” he said, referencing the 17th-century English court now used as a stand-in term for any court with secretive proceedings and arbitrary rulings. “It evolved over time into a powerful weapon for political retribution from the king.”