Congress Getting Pissed Off Over Failure Of Intel Community To Reveal How Many Americans Are Being Spied On

from the outright-lies dept

As we've pointed out for many, many years, Senator Ron Wyden has been banging the drum, asking the Director of National Intelligence to reveal how many Americans are having their communications swept up under Section 702 of the FISA Act. We have posts going back to 2011 of Wyden asking for a number and being stonewalled. At the time, many tried to brush it off as nothing to be concerned about -- after all, the "F" in FISA is supposed to stand for "Foreign" and so it was assumed (incorrectly) that Americans' communications were mostly unlikely to be caught up in the matter. Of course, as we now know quite well, that's not even remotely true. Between the Snowden revelations and other declassified FISA court orders, we know that tons of Americans had their communications swept up, without any kind of warrant. Throughout all of this time, Wyden kept asking that question over and over again, without getting any answers. Last year, others finally joined in, with a large bipartisan group from the House Intelligence Committee all (finally!) asking the same question.

Eventually, late last year (after years of stalling), then Director of National Intelligence, James Clapper, said that his office would deliver an estimate to Congress. Indeed, the House Judiciary Committee worked with Clapper's office to set up the parameters for that number, noting that it needed to be provided "early enough to inform the debate" about the renewal of Section 702, and had to be provided in a format that could be provided to the public, rather than kept in secret. That estimate never came. This issue came up again during the hearings for Clapper's replacement, Dan Coats, who also said he would try to get Congress a number. Specifically, he told Wyden: "I'm going to do everything I can to work with Admiral Rogers in NSA to get you that number."

As we noted, two months ago, another bipartisan letter was sent to Coats, this time signed by both the chair of the committee, Bob Goodlatte, and the ranking member, John Conyers. That generally means that the Committee is getting serious about stuff. In the letter, they noted that they were still waiting on Coats to deliver this number and expected to see it soon.

Then, yesterday, there was a public Senate Intelligence Committee hearing over the issue of the 702 renewal. While most of the press is focused on the refusal of those testifying to say whether President Trump had spoken to them about various investigations concerning Russia, there was something else concerning that was brought up. Coats, despite his earlier promises and the promises of his office, is now saying that it would be impossible to give a number.

Not surprisingly, for the folks in Congress who have been insisting on getting this number (and giving it to the public), this... did not sit well. When it was Senator Wyden's turn to question the panel, he went off on Coats for going back on his word.

This morning you went back on that promise and you said that even putting together a sampling, a statistical estimate, would jeopardize national security. I think that is a very, very damaging position to stake out.

Later in that exchange, there was this exchange (which, if you watch it, involved both men being fairly testy with each other):

Wyden: Can the government use FISA 702 to collect communications it knows are entirely domestic? Coats: Not to my knowledge. It would be against the law.

As Marcy Wheeler points out, that exchange may prove to be similar to Wyden's now infamous question to Coats' predecessor, Clapper, about whether or not the NSA collected information on millions of Americans (the "not wittingly" response, which was later shown to be completely bogus). Wheeler points out that for Coats to actually believe that, it would appear that he doesn't know how 702 is actually used, even though he signed a memo about this very thing. Wheeler points to the recent FISC opinion reauthorizing 702 data collection that states that if the Director of the NSA signs a waiver for all of the domestic collections, then the NSA can still collect a wholly domestic communication under 702. That FISC opinion cites a March 30th memo that Coats would have signed as the justification for this argument. So for him to now say that it's illegal for the very thing his own memo from March says is okay... seems like a serious problem.

And Wyden's not the only one upset about this. Since this was a Senate hearing, Rep. Conyers wasn't there, but he put out a blistering statement calling Coats' statements "unacceptable."

The intelligence community has—for many months—expressly promised members of both parties that they would deliver this estimate to us in time to inform our debate on the reauthorization of Section 702. As late as last August, we had discussed and approved the specific methodologies that the NSA might use to make good on their promise. Today, Director Coats announced that the estimate is ‘infeasible’ and will not be forthcoming. I find that outcome unacceptable. Over the course of the last year, we believed we had worked past the excuses we are offered today. The nation’s leading civil liberties organizations see no threat to privacy in this project, and have said so publicly. The agencies demonstrated to us how they might perform this analysis without significant diversion of resources. I am deeply disappointed in a return to these old talking points. Section 702 is built on trust. It will be more difficult to find that trust as we move forward with the debate.

As we discussed earlier this week, a bunch of Senators have already been pushing a permanent renewal of 702 with no changes at all. As the debate heats up on the renewal of Section 702 ahead of its expiration later this year, we're going to need Congress to hold the intelligence community to its promise to reveal at least some data on how these programs impact Americans' communications.

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Filed Under: congress, dan coats, estimate, john conyers, nsa, odni, ron wyden, section 702, surveillance