Skewed Priorities at Last Week’s FISA Hearing
Congress needs to focus less on Trump scandal, more on oversight of mass surveillance programs
Last Wednesday, the Senate Intelligence Committee convened a hearing on the Foreign Intelligence Surveillance Act, key portions of which are set to expire at the end of this year. Among them is Section 702, which authorizes the government to collect the communications of non-US citizens abroad that pass through US communications infrastructure without a warrant. Section 702 is controversial, however, because while the provision is aimed at foreigners, it nevertheless enables the warrantless collection of both foreign and US internet communications due to the way the internet is architected and the difficulties associated with disentangling target communications from those that are “incidentally” collected.
Section 702 reauthorization was to be the original focus of the Wednesday hearing. But the day before, an explosive report in the Washington Post was released alleging that President Donald Trump had asked the nation’s top intelligence official, Dan Coats, as well as the head of the National Security Agency, Mike Rogers, to intervene with then-FBI Director Jim Comey to curb the bureau’s investigation into former national security adviser Michael Flynn. As a result, much of the panel’s time was spent grilling the witnesses about the veracity of those claims.
To the members’ visible frustration, all four of the witnesses repeatedly declined to comment on the report. Reactions from the panel ranged from concerned and irritated to outright indignant. The committee’s chairman, Richard Burr (R-NC), summarized the feelings of the panel toward the witnesses at the end of the hearing thusly: “At no time should you be in a position where you come to Congress without an answer. It may be in a different format, but the requirements of our oversight activities and your agencies demand it.” Senator Jack Reed (D-RI) offered his own perspective: “The impression I have is that if you could say that [you weren’t asked to intervene with Comey], you would say that.”
The panel was right to challenge the witnesses on their refusal to answer the Trump questions. But it had less to say about an arguably far more significant stonewall that took place at the hearing. That was when Director Coats, after having been excoriated by Senator Ron Wyden (D-OR) for failing for the umpteenth time to provide an estimate of how many Americans’ communications are swept up in 702 surveillance, stated that such an estimate could not be produced. The agency lacked the know-how to make it happen, Coats said. And even if it didn’t, it wouldn’t be able to provide an estimate without undermining the privacy rights of Americans. (Rights that the intelligence community is suddenly now concerned with after years of virtually unchecked mass surveillance, conveniently enough).
Where was the rest of the committee’s insistence on getting answers to oversight questions then? And why has the intelligence community consistently refused to furnish them? Coats’s explanation seems improbable given the extraordinary capabilities and expertise of the agency, as Congressman Jim Jordan (R-OH) and others have argued. Far more likely is that the requested information has the potential to seriously undermine the NSA’s argument that Section 702 is not abused. That, in turn, could jeopardize the NSA’s ability to retain the extremely broad surveillance powers that it currently enjoys.
If that is indeed the mindset that is driving the intelligence community’s approach to oversight questions, then it is engaged in self-serving obscurantism. That is a problem at a time when current and former intelligence community officials are aggressively lobbying for the permanent reauthorization of Section 702. Americans have significant concerns about these programs, and privacy advocates are unable to get even the most basic estimate of how many Americans’ communications are swept up in the PRISM and Upstream programs that 702 authorizes.
The Intelligence Committee was forceful in asserting that it would pursue answers to its questions regarding Trump’s conduct vis-a-vis the FBI investigation. It should be equally forceful in demanding answers regarding the scope of Section 702 surveillance — answers that it needs in order to do its job properly and ensure that Americans’ Fourth Amendment rights are protected.
Chris Knox is a blog contributor for The Committee for Justice. He is a former Senate committee staff member and a graduate of Georgetown University's Master of Arts program in Democracy and Governance.