Lawmakers say obstacles limit oversight of NSA surveillance
WASHINGTON — The Obama administration points to checks and balances from Congress as a key rationale for supporting bulk collection of Americans’ telephone communications data, but several lawmakers responsible for overseeing the program in recent years say that they felt limited in their ability to challenge its scope and legality.
The administration argued Friday that lawmakers were fully informed of the surveillance program and voted to keep it in place as recently as 2011. Officials say they have taken unusual steps to make information available to Congress, and committee leaders say they have carefully examined the National Security Agency’s data collection.
Yet some other members of the intelligence and judiciary committees paint a different picture.
They describe regular classified briefings in which intelligence officials would not volunteer details if questions were not asked with absolute precision.
Unlike typical congressional hearings that feature testimony from various sides of a debate, the briefings in 2010 and 2011 on the telephone surveillance program were by definition one-sided affairs, with lawmakers hearing only from government officials steeped in the legal and national security arguments for aggressive spying.
Additional obstacles stemmed from the classified nature of documents, which lawmakers may read only in specific, secure offices; rules require them to leave their notes behind and restrict their ability to discuss the issues with colleagues, outside experts or their own staff.
While Senate Intelligence Committee members can each designate a full-time staffer for the committee who has full access, House members must rely on the existing committee staff, many of whom used to work for the spy agencies they are tasked with overseeing.
Agency officials, meanwhile, aggressively court the committee, giving lawmakers a sense of being insiders in a clandestine world and at times treating them to a real-life version of the Spy Museum, former members said.
And when a handful of skeptics on each panel raised concerns about the surveillance program or proposed changes, such as shifting the data collection to the companies rather than the government, they were handily defeated by bipartisan majorities who saw the program as a crucial tool in preventing terrorist attacks.
“In terms of the oversight function, I feel inadequate most of the time,” said Rep. Jan Schakowsky, D-Ill., a member of the House Intelligence Committee and an NSA critic. Bulk surveillance “certainly was approved by Congress. Was it approved by a fully knowing Congress? That is not the case.”
Rep. Adam Schiff, D-Calif., another member of the House Intelligence Committee, said the biggest challenge has been figuring out exactly what questions to ask. “Sometimes you wonder if you’re missing big things that you shouldn’t be missing,” Schiff said. The task is made harder, he said, because members must leave their briefing materials in the committee offices in the Capitol basement, where each member’s documents are kept in three-ring binders labeled “Top Secret.”
“The members have to maintain their own notes and their own follow-up and keep the issues very much in their own minds,” he said.
Similar concerns have come from some Republicans, including Rep. James Sensenbrenner of Wisconsin, a key author of the law authorizing the bulk data surveillance who has in recent weeks become a critic. He said classified briefings for lawmakers were a “rope-a-dope operation” designed to silence “those who are on the trail of something that isn’t right” because rules restrict their ability to speak with other members and the public.
The administration’s move Friday to issue a fuller defense of the surveillance program, disclosed publicly in June by former NSA contractor Edward Snowden, seemed designed to stem a growing bipartisan tide on Capitol Hill against bulk collection of Americans’ data. A measure co-sponsored by a young libertarian, Rep. Justin Amash, R-Mich., and an old liberal, Rep. John Conyers, D-Mich., to halt the bulk data collection was narrowly defeated in a close call that surprised administration officials.
On Friday, Obama and his administration sought to remind the public that many of these same lawmakers moving to undercut the program had previously signed off on it.
The White House issued a statement saying the administration had “engaged Congress on these issues on 35 occasions, including several committee hearings and all-Senate and all-House Members’ meetings.”
A 22-page white paper from the Justice Department laying out the legal rationale for the bulk collection program singled out Congress’ access to the details of the program and its role in repeatedly approving the underlying provision, known as Section 215 of the USA Patriot Act.
“Information concerning the use of Section 215 to collect telephony metadata in bulk was made available to all Members of Congress, and Congress reauthorized Section 215 without change after this information was provided,” the document said. “It is significant to the legal analysis of the statute that Congress was on notice of this activity and of the source of its legal authority when the statute was reauthorized.”
Friday’s release followed the recent declassification of letters to lawmakers showing that administration officials had repeatedly told Congress about the bulk collections. One summary sent in 2009 mentioned “critical and highly sensitive intelligence collection programs under which NSA collects and analyzes large amounts of transactional data.” The document added: “Although the programs collect a large amount of information, the vast majority of that information is never reviewed by anyone in the government, because the information is not responsive to the limited queries that are authorized for intelligence purposes.”
James Clapper, director of national intelligence, said in a letter to lawmakers released last month that the government made “special efforts” undertaken by officials to give all members of Congress the chance to learn about the program beyond the required oversight of the intelligence and judiciary committees. People familiar with the all-member briefings in 2010 and 2011 say the sessions were highly unusual, even risky, because such a wide swath of lawmakers were granted access to highly sensitive materials.
Obama on Friday outlined a series of proposed changes that he said would enhance public confidence in the surveillance program and strengthen oversight, including the addition of an adversarial view when the government seeks orders from the top-secret Foreign Intelligence Surveillance Court. Currently, the judges hear only from the officials in a non-adversarial process.
His calls for change have been echoed in recent days by other defenders of the NSA program, including Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., who said Friday she would launch a “major review” this fall of the bulk collection program. A similar effort is being planned by the Republican chairman of the House Intelligence Committee, Rep. Mike Rogers of Michigan. The reviews are geared toward increasing public confidence in programs that remain fully supported by the committees -- and are not designed to end the bulk collection.
Rogers, in a Saturday interview, rejected the complaints from critics, saying that he and the committee’s ranking Democrat, Rep. C.A. Dutch Ruppersberger of Maryland, have worked together to increase scrutiny of intelligence program budgets. The committee, he said, poses tough questions to agency officials and engages in spirited, behind-the-scenes debates over the bulk data program.
“You may not like the program, but we were doing plenty of oversight to make sure it was legal and constitutional,” he said.
Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.
“If you have individual members who say they don’t have time to be on the intelligence committee, then I say get off the intelligence committee,” he said.
Ruppersberger said all members benefit from an expert staff and a push in recent years for greater bipartisanship on the panel. The issues are complex and time-consuming, he said, “but we have to learn them. We have to hold these agencies accountable, but we also have to give them the resources they need to protect our country.”
Sen. Jay Rockefeller, D-W.Va., a member of the Senate Intelligence Committee who expressed anger that Congress was kept in the dark about interrogation and surveillance tactics under the George W. Bush administration, now feels that Congress has what it needs. He credits Feinstein and the Senate panel’s ranking Republican, Sen. Saxby Chambliss of Georgia, for inviting every senator into the committee offices to examine classified materials.
“The intelligence oversight committees have kicked the tires on these programs very hard, with hearings and legislation and oversight, and the programs have overwhelming bipartisan support on these committees,” a Rockefeller spokeswoman said.
Congress’s 2011 reauthorization vote approved, at Obama’s urging, a four-year extension to the Patriot Act provisions, until June 2015. The reauthorization passed with overwhelming bipartisan majorities, despite objections from civil liberties groups and a handful of lawmakers, including some who were fully aware of the telephone data collection and issued carefully worded yet vague warnings in public debate.
Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, co-sponsored a measure with Sen. Rand Paul, R-Ky., to increase congressional oversight of the intelligence community’s record-gathering under the 215 provision, but it was never voted on. Another effort at limiting the surveillance failed during the 2006 reauthorization, when House-Senate negotiators declined to adopt a measure backed by a majority of senators that would have required stronger privacy protections. Instead of only allowing the government to gain telephone business records if the records were “relevant” to an authorized investigation, the Senate-approved bill would have also required that the records be linked to the activities of a foreign power, an agent of a foreign power or an individual in contact with such an agent of a foreign power.
Critics with deep knowledge of the congressional oversight committees say lawmakers’ ability to regulate the sprawling and complex intelligence network provides only a limited check on executive power.
“I am astounded that so many members of Congress could be informed about the specifics of the program and fail to see the urgent need for public discussions,” said former representative Lee Hamilton, D-Ind., a longtime member of the House Intelligence Committee who co-chaired the 9/11 Commission.
Noting that a handful of skeptical lawmakers, such as Sen. Ron Wyden, D-Ore., had tried to apply pressure behind closed doors, Hamilton added: “Even they were simply unable to get it into the open. It took a leaker to do it.”
Rep. Jerrold Nadler, D-N.Y., a House Judiciary Committee member who was briefed multiple times by senior intelligence officials, said classification rules prevented him and others from being able to make a coherent case for amendments.
“Even if members know about it, they can’t say it, so how do you change it?” Nadler asked. “Even when it comes up for renewal, you say, ‘We have to change the law with this language.’ Why? You can’t say. How do you get political support to change a law when you can’t say the reason?”
Rep. Rush Holt, D-N.J., a former House Intelligence Committee member who clashed frequently with officials from the NSA and other agencies, said he felt the agencies would confuse members rather than earnestly try to respond to concerns.
“Even if, in the game of 20 questions, they give us an answer that is precisely correct, they often delight in obfuscating behind a flurry of tech speak,” Holt said. “The result,” he added, “is that Congress has not been able to, and in many cases has not wanted to, exert serious oversight of the intelligence community.”
But outside committee meetings, Holt said agency officials were assertive in their efforts to “ingratiate” themselves with intelligence committee members by letting them experience some tools of the spy trade.
One time, in between meetings with agency officials, for instance, Holt and several colleagues were invited to shoot high-caliber weapons at a CIA firing range.