July 12, 2013

Government surveillance: Lawmakers say they were mislead

The scope of the collection of data on Americans was never made clear, members of both parties say.

By PETER WALLSTEN The Washington Post

(Continued from page 1)

Director of National Intelligence Clapper testifies at a security threat hearing on Capitol Hill in Washington
click image to enlarge

Director of National Intelligence James Clapper testifies March 12 before a Senate Intelligence Committee hearing on national security threats. He testified that the government was not collecting data on millions of Americans, but later said he misspoke.


"The disclosures of the last few weeks have made it clear that a secret body of law authorizing secret surveillance overseen by a largely secret court has infringed on Americans' civil liberties and privacy rights without offering the public the ability to judge for themselves whether these broad powers are appropriate or necessary," Wyden said.

At the time that Justice Department officials appeared at public hearings in 2009 and 2011, the White House was pushing Congress to reauthorize provisions of the USA Patriot Act, including Section 215, which allows for the collection of "business records" and has since drawn attention as the justification for the bulk surveillance of phone records.

Two top Justice Department officials -- Todd Hinnen and David Kris -- told lawmakers in separate appearances that the government's authority in national security cases was "roughly analogous" to that available to FBI agents investigating crimes using grand jury subpoenas. Both invited lawmakers to learn more in classified sessions.

Hinnen, now a lawyer in private practice, said in an interview that the analogy was a direct reference to a provision in the business records law that says the government can collect information only if that data "can be obtained with a subpoena ... issued by a court of the United States in aid of a grand jury investigation."

Brian Fallon, a Justice Department spokesman, on Wednesday stood by the officials' testimony. "The statute itself describes the program in this way," he said.

Still, some lawmakers now say the testimony offered no clear indication that all Americans were subject to surveillance.

"I don't know if it was an outright lie, but it was certainly misleading to what was going on," said Nadler, who was chairman of the committee that heard from Hinnen in 2009.

Rep. F. James Sensenbrenner Jr., R-Wis., a key author of the Patriot Act who presided over a 2011 House hearing where Hinnen appeared, wrote this month to Attorney General Eric Holder Jr. that Hinnen's testimony "left the committee with the impression that the administration was using the business records provision sparingly and for specific materials."

In an interview, Sensenbrenner, former chairman of the House Judiciary Committee, said he had thought that he and his colleagues had created a sufficiently narrow standard for seeking information. The provision allows the government to collect only data that is "relevant" to an authorized terrorism investigation.

The relevancy requirement "was intended to be limiting," Sensenbrenner said. "Instead, what we're hearing now is that 'relevant' was expanding." Sensenbrenner called it a "stretch of the English language" for the administration to consider millions of Americans' phone records to be "relevant."

Sensenbrenner, who had access to multiple classified briefings as a member of the Judiciary Committee, said he does not typically attend such sessions. He called the practice of classified briefings a "rope-a-dope operation" in which lawmakers are given information and then forbidden from speaking out about it.

"It's the same old game they use to suck members in," he said.

The allegation of misleading statements even during classified sessions comes from Wyden and Sen. Mark Udall, D-Colo., colleagues on the Senate Intelligence Committee.

Their concerns arose from closed-door discussions in 2011 regarding a top-secret program that was collecting data about Americans' e-mail usage.

The existence of the e-mail surveillance program, which was shut down in 2011, was first disclosed publicly late last month in The Post and the Guardian.

The senators said they had been "quite familiar" with the program and had devoted much of their time in 2011 to questioning officials about it.

"Intelligence officials have noted that the bulk email records program was discussed with both Congress and the Foreign Intelligence Surveillance Court," Wyden and Udall said. "In our judgment it is also important to note that intelligence agencies made statements to both Congress and the court that significantly exaggerated this program's effectiveness."

"We believe that the broader lesson here is that even though intelligence officials may be well-intentioned, assertions from intelligence agencies about the value and effectiveness of particular programs should not simply be accepted at face value by policymakers or oversight bodies any more than statements about the usefulness of other government programs should be taken at face value when they are made by other government officials," the senators added.


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