A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology
(1) Congress Begins Deeper Investigation of NSA's Warrantless Wiretapping Program
(2) Congress Has Authority to Investigate Operational Facts of NSA Program
(3) Staff Inquiry Needed into Nature and Scope of NSA Program
(4) Discussion of Amending FISA Is Premature
Last week, as key Republicans joined Democrats in expressing concerns about warrantless domestic wiretaps, House and Senate Committees began to probe more deeply into the National Security Agency (NSA) program.
At the beginning of the week, Attorney General Gonzales defended the legality of the program before the Senate Judiciary Committee but refused to answer any questions about its scope or implications. Chairman Arlen Specter (R-PA) and three other Republicans expressed skepticism at the Attorney General's legal arguments and consternation that the President had not sought explicit Congressional approval of the program.
Later in the week, Gonzales and the Deputy Director of National Intelligence, Lt. General Michael Hayden (former director of the NSA), appeared before closed sessions of the House and Senate Intelligence Committees.
By week's end, Rep. Heather Wilson (R-NM), chair of the House Intelligence Subcommittee, which has oversight authority for the NSA, was calling for a more detailed probe of the program. Until last week, the White House had limited its briefings about the NSA program to eight senior members of Congress -- the four members of the House and Senate leadership and the Chairmen and Ranking Members of the House and Senate Intelligence Committees (collectively, the "Gang of Eight"). Those Members of Congress were allowed neither to take notes nor consult with anyone -- not even their staff -- after the briefings, putting them at a substantial disadvantage and effectively limiting oversight of the program.
Even with the limited information currently available, we can conclude that the program violated FISA and that the Administration's Constitutional arguments are questionable at best. However, before Congress can decide how to proceed, it has to understand better the operational nature and scope of the program. CDT is calling on Congress to exercise fully its oversight responsibilities, to learn the basic facts about the program and then to insist that the program be terminated or subjected to appropriate checks and balances. While last week's hearings were a good start, they should be the beginning, not the end, of Congress' inquiry into the NSA's warrantless monitoring of Americans.
CDT NSA resources: http://www.cdt.org/security/nsa/briefingbook.php
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In the 1970s, after thoroughly investigating years of intelligence agency abuses that rose to their most egregious level during the Nixon Administration, Congress adopted two major reforms to ensure the government had the power it needed to defend the nation from terrorist threats, while at the same time protecting innocent Americans from unjustified surveillance.
One pillar of the post-Watergate reforms was the Foreign Intelligence Surveillance Act (FISA), which created a special court from which the government can quickly and secretly obtain a warrant to wiretap suspected terrorists.
The second pillar was the Congressional oversight process. The Judiciary Committees were recognized as having an interest in the constitutional aspects of domestic surveillance. Special intelligence committees were created in the Senate and House of Representatives, designed expressly to oversee even the most sensitive intelligence programs on behalf of the American people, guarding against abuses without compromising national security.
Until the current Administration decided to bypass both the FISA court and the Congressional oversight process, there had been broad consensus that these reforms, while protecting civil liberties, had also strengthened, not weakened, intelligence agencies by clarifying their authorities.
The Senate and House Intelligence Committees have the jurisdiction, the authority, and the responsibility to conduct an inquiry into the operational details of the NSA program. Under the National Security Act, the President is required to ensure that the congressional Intelligence Committees are kept "fully and currently informed" of U.S. intelligence activities, including any "significant anticipated intelligence activity."
Another provision of the National Security Act specifically requires that the Director of National Intelligence and the heads of intelligence agencies "keep the Intelligence Committees fully and currently informed of all intelligence activities" and "furnish [them] any information or material concerning intelligence activities, other than covert actions" that is within their control.
The "Gang of Eight" rule that allows the President to limit notification of "covert actions" to eight senior members of Congress specifically excludes intelligence-gathering activities from the definition of "covert action." Thus, despite the Administration's claim that it has "briefed" Congress, its limited briefings to the Gang of Eight were not an adequate substitute for the statutorily mandated congressional oversight.
Administration officials announced late last week that they would provide information about the NSA program on a classified basis to the full membership of the Intelligence Committees. The administration's about-face is a welcome turn, but Intelligence Committee members must insist that the administration give them all of the information necessary to fulfill their constitutional and statutory responsibilities. If necessary, the Committees should issue subpoenas.
The Judiciary Committees share jurisdiction over electronic surveillance with the Intelligence Committees. Chairman Specter of the Senate Judiciary Committee made it clear that his Committee would hold further hearings, and House Judiciary Committee Chairman Jim Sensenbrenner (R-WI) sent the Administration a detailed list of questions.
Before it determines the program's legality and before it even considers the need for new legislation, Congress must understand the full operational extent of the NSA program.
Practically speaking, the only way to do this is through a staff inquiry, by the Judiciary and Intelligence Committees. Members of Congress do not have the time to dig into the details of a program like this. Once staffers have uncovered the facts, then Members can consider the policy issues. This is the model that has been followed for over 30 years. Congress has proved that it can conduct staff investigations of intelligence programs without compromising national security. It did this when the Church Committee thoroughly and successfully investigated the FBI's domestic surveillance during the Cold War; it did so in laying the basis for the enactment of FISA; and it did so in its recent investigations of intelligence failures relating to the 9/11 attacks and Iraqi weapons of mass destruction.
Reports indicate that the NSA domestic spying effort has multiple aspects: one that intercepts the substance of communications, another that analyzes large amounts of communications traffic, and a third that expanded the amount of information about "U.S. persons" disseminated to other intelligence agencies. The media has also reported that large telecommunications companies, including AT&T, MCI and Sprint, have given the NSA access to their massive "gateway" facilities in the U.S., which route voice and data transmissions from around the world.
Congress must learn, and to the extent possible, report to the public, details including whom the NSA is targeting, how it is identifying those targets, what information the program collects and disseminates, and most important, whether these programs advance our national security interests without compromising citizens' privacy.
Congress must also determine whether there are other surveillance programs directed against targets in the United States. The Attorney General, in his testimony before the Senate Judiciary Committee, refused to answer questions about whether the President's legal theories are being used to justify other programs.
The Administration has suggested that FISA is outdated because it does not fit the new technology and the terrorist threat, but it is premature to consider amending FISA. Congress does not have sufficient understanding of the full scope of the program (or programs) or of the ways in which changing technology has affected government surveillance. There has been no evidence -- only the Administration's assertions -- that FISA is inadequate.
If anything, FISA is ill suited to the new technology because its standards are too weak, given the reliance of so many ordinary Americans on the Internet, its global nature, and the huge growth in the volume of international communications traffic on the part of ordinary Americans. In many ways, the digital revolution has augmented the power of the NSA, placing much more information at its disposal. The vacuum cleaner technology of the NSA is too powerful when aimed domestically.
Moreover, FISA already allows a great deal of warrantless activity, in ways that may no longer be appropriate. Even when limited to its proper use, NSA's technology unintentionally collects an enormous amount of data on U.S. persons.
Given the unprecedented amount of information Americans now transmit electronically, the risk of intercepting and disseminating the communications of ordinary Americans is vastly increased, requiring more precise -- not looser -- standards, closer oversight, new mechanisms for minimization, and limits on retention of inadvertently intercepted communications.
Addressing these issues will require an in-depth Congressional inquiry and a broad and informed debate, not a quick fix.