NSA FISA Controversy: Intelligence Officials Face Bipartisan Opposition to Surveillance Programs

Bipartisanship is rare these days, but the surveillance activities revealed by leaker Edward Snowden seem to have brought together progressive Democrats and libertarian-leaning Republicans in their mutual distrust of the National Security Agency’s spying operations.

Government officials have been making the trek to Capitol Hill for a month now to testify about two of the NSA’s programs since documents leaked in early June revealed that the government is collecting metadata on all domestic phone calls as well as incidentally sweeping up American communications during broad foreign intelligence collection operations. But when government officials tried to assure House Judiciary Committee members on Wednesday that the programs are legal and strike an appropriate balance between national security and civil liberties, they found very few sympathetic members on either side of the aisle. Instead, the witnesses encountered a rare showing of bipartisanship as the committee turned angrily on the actions of the intelligence community.

Witnesses quickly found themselves on the defensive as members of Congress questioned whether the NSA had acted beyond the bounds of USA Patriot Act Section 215, the so-called “business records” provision under which the metadata collection program takes place. Of particular importance to several members was the fact that Section 215 stipulates that only persons relevant to an investigation can be targeted -- a standard many lawmakers believe has been misinterpreted by the government and the secret Foreign Intelligence Surveillance Court in order to authorize the metadata program.

“This is unsustainable, it’s outrageous and must be stopped immediately,” said Rep. John Conyers, D-Mich., the top Democrat on the committee. “It’s clear to me that we have a very serious violation of the law in which the judiciary committee very clearly put in the issue of relevance.”

Speaking after Conyers, Rep. James Sensenbrenner, R-Wis., defended his colleague’s line of questioning on relevance before warning the witnesses that if the government does not change how it is using Section 215, there will not be enough votes in the House of Representatives to reauthorize the statute when it expires in two years.

Next came progressive Rep. Jerrold Nadler, D-N.Y., who lit into the witnesses, echoing his colleagues concern that the metadata program is “totally unprecedented and way beyond the statute.” Nadler and one of the witnesses, Deputy Attorney General James Cole, had a testy exchange about the civil liberties implications of the program. Like Conyers and Sensenbrenner, Nadler appeared visibly put off by the justifications put forward by the witnesses.

In addition to Cole, the witnesses on the first panel were Robert Litt, legal counsel in the Office of the Director of National Intelligence; John Inglis, a top official at the NSA; and Stephanie Douglas, executive assistant director of the National Security Branch at the Federal Bureau of Investigation. A second panel that was more sparsely attended by members included two supporters of the programs, former NSA legal counsel Stewart Baker, former DOJ attorney Steven Bradbury and two civil liberties advocates, Jameel Jaffer of the American Civil Liberties Union and Kate Martin of the Center for National Security Studies.

Rep. Ted Poe, R-Texas, a former judge, began his line of questioning by reading the Fourth Amendment aloud. “Now, I have read that many times, and I don’t see in here anywhere an exception for National Security,” Poe said. “Do any of you see a national security exemption to the Fourth Amendment?” Unsatisfied with the answer he received, Poe repeated the question. “We’re gonna argue till the sun goes down,” he said. “The Fourth Amendment doesn’t mention national security exceptions.”

One of the last members to question the panel, Rep. Jason Chaffetz, R-Utah, engaged Deputy Attorney General Cole in a contentious back-and-forth over the idea of metadata vs. content. Chaffetz began by asking Cole whether the government considers location information metadata or content, a question raised by a recent Supreme Court case called United States v. Jones, in which the court ruled that using a GPS device to track the location of a person’s car over a period of time constituted a search under the Fourth Amendment. Cole stumbled in his response.

“Has the Department of Justice issued any guidance on Jones?” Chaffetz asked Cole. When Cole said the department was “in the process” of doing so, Chaffetz pounced.

“That is not an accurate answer,” Chaffetz said, citing known documents issued by the department on the case. Cole said he stood corrected, but would not commit to providing a copy of those guidance documents to the Judiciary Committee. Getting back to the original question, Cole said that he believed geolocation was somewhere in between content and metadata, but probably more like metadata than content.

“This is what scares me about what you’re doing and how you’re doing it,” Chaffetz said.

One of the last questions to the first panel came from Rep. Ted Deutch, D-Fla., who asked the witnesses, as many members did, about the role of the secret FISA court itself. “Does the panel understand why people may find this revelation shocking, that secret court rulings could expand the powers of the government beyond perhaps what was originally authorized by law?” he asked.

Cole responded: “All significant opinions and all significant pleadings that have been filed with the FISA court are made available to the committees, to the intelligence committee and judiciary committee,” he said. Then, softening his tone, he added, “but these are issues that we’re trying to grapple with, and trying to determine what we can let out so that we can have this broader discussion.”