So, the AP and a few other news sources this weekend wrote articles talking about how US government officials, including the White House and the heads of the two Congressional intelligence committees, Senator Dianne Feinstein and Rep. Mike Rogers had all rejected Ed Snowden's "plea for clemency." Given the players, that's not too surprising, but there's one big problem. Snowden never made a plea for clemency. So the whole thing is bogus. It appears to be based on a bunch of bad reporting, starting with the AP, who said the following:
Snowden made the plea in a letter given to a German politician and released Friday. In his one-page typed letter, he asks for clemency for charges over allegedly leaking classified information about the NSA to the news media. ""Speaking the truth is not a crime," Snowden wrote.
Okay. Of course, since that letter was released, we can read the whole thing, and if you can find where he made a plea for clemency, let me know. It's not very long. And, there's nothing in there even remotely asking for clemency. Or anything like it. It's just Snowden pointing out, accurately, that "to tell the truth is not a crime," and we need more truth telling from the government.
But, of course, Feinstein and Rogers couldn't resist some grandstanding on all of this. Feinstein's response was particularly funny because she said that Snowden could have just reported the issue directly to her committee, where they would have buried it. Remember, Feinstein and the Senate intelligence committee have been arguing pretty much all along that everything that Snowden revealed is all perfectly legal -- even as the public and many officials are outraged by what happened. Anyone who thinks that Snowden reporting it would have done anything other than hindered any future job prospects for Ed Snowden hasn't been paying attention.
That said, Yochai Benkler, has a great piece over at The Guardian arguing why the US should grant Snowden amnesty, which is slightly different from clemency (which, again, he never asked for). Amusingly, Benkler uses the example of Congress in 2008 giving telcos retroactive immunity for their actions in helping the NSA as a model for how Congress can give Snowden similar amnesty, noting (correctly) that we already have a model of this in place. As for why? Well, considering how many things even our own government is claiming Snowden has revealed that show the NSA has gone too far certainly suggest that his leaks have been useful in exposing massive government wrongdoing by some, and terrible incompetence or ignorance by others.
Snowden hasn't asked for clemency, but if the US government is smart, it should grant him amnesty, and get him involved in the process of cleaning up the mess that the NSA (not Snowden) has created.
We recently wrote about the absolutely bizarre claims of Rep. Mike Rogers, the man supposedly in charge of "oversight" of the Intelligence Community, claiming that there can be no privacy violations "if you don't know your privacy is violated." This has resulted in plenty of mocking, including with satire so good many people believed it. It's also been picked up, somewhat, by the bastions of pop culture, Jon Stewart and Stephen Colbert. Stewart covered it on Wednesday's episode of The Daily Show, though it feels like he sort of underplayed the absolute ridiculousness of Rogers' statement. Colbert's version, however, was quite well done, and gets better as you go along (and, yes, I know, that video can't be seen in many regions, but if you can't watch the video, you can see the animated gif version instead:
The key lines from Colbert, after playing the tape of Rogers' shocked statement at the idea that anyone's privacy could possibly be violated so long as they didn't know about it, followed by Stephen Vladeck's comment that "if a tree falls in a forest, it makes a noise whether you're there to see it or not," Colbert explains in his usual satirical manner that it all "makes perfect sense if you don't think about it" and also notes that when someone lies to you, "technically they're telling the truth, so long as you never find out it's a lie":
Let's say, instead of falling in the forest, the tree is standing outside your house and I'm hiding in it watching you shower. So far, I'm not violating your privacy. But the second you see me through the window, suddenly I'm the criminal? What about my privacy? I'm trying to masturbate here. Come to think of it, there are all sorts of victimless crimes like this. We know people getting assaulted because they call the police. But I've never heard of anyone calling the cops because they were murdered. Therefore, clearly, no one was killed. By the same logic, folks, I have not insulted Mike Rogers as long as he never hears me say: The reason Mike Rogers uses circular logic is because his head is jammed up his own ass.
Of course, obviously, I do not mean a word of that. I admire what historians will now call "The Rogers' Doctrine": when it comes to privacy vs. security, we can have one of them, as long as we don't know which one it is. That way, we can maintain our constitutional rights. Or, if they do take away our rights, just don't let us find out. That way, we'll still have them.
Meanwhile, over at Slate, Will Oremus has also written about Rogers' comment, and also come up with a name for it. He calls it "Rogers' Paradox," noting that it's a variation on the historical concept of "what you don't know can't hurt you," and how this is "an age-old excuse for people in power to trample on the rights of those without it."
But, Oremus makes an even more pertinent point. If Rogers' statement is accurate (and it's not), then it would actually mean that greater transparency itself would harm people's privacy because they'd find out about it. Think about that for a second. Under the logic of Mike Rogers' twisted mind, the more transparency there is about privacy violations, the more those non-privacy violations become privacy violations -- and thus he must fight against such transparency at all costs to protect our privacy.
Ken White blogs at Popehat. He's a litigator and criminal defense attorney at Brown White & Newhouse LLP in Los Angeles. His views are his alone, not those of his firm. This post is cross-posted from Popehat with permission.
And, because we here at Techdirt have had issues with Mike Rogers' office in the past, we hope that they have a dictionary and a copy of the Constitution -- though, given the comments that inspired this post, it seems like he might need a remedial refresher course.
Dateline: Washington, D.C.: Representative Mike Rogers (R-Michigan) was defiant today in the face of accusations that he had installed a small digital camera in the women's bathroom in his office at the Capitol.
Yesterday, we wrote about the incredible exchange between Reps. Mike Rogers and Adam Schiff, after Rogers made a big production out of claiming that of course the House Intelligence Committee knew all about the NSA spying on foreign leaders. Schiff (and some others on the committee) made it clear that, contrary to Rogers' condescending claims earlier, they had no idea, despite being on the committee. However, to understand the level of dripping condescension from Rogers towards his colleagues who contradict him on the Committee, you really have to watch the video. If C-SPAN's video clipping service is working correctly (and it's crazy buggy), you should see the whole thing below (or at this link, starting with Schiff's questions to the panel, in which he makes it clear that he was not informed, and that he's not at all happy with James Clapper trying to tap dance around this by spewing a bunch of words that don't mean anything about how he tries to follow "the spirit" of the law.
The fun starts a little over five and a half minutes in when Rogers starts lecturing Schiff about not saying what Schiff knows is true, and making not-particularly-veiled claims that if only Schiff had done his homework, he'd know about it. Schiff shoots back to point out that dumping a ton of documents and insisting that he must know everything in them is quite different than directly informing him of this very serious activity, leading to a long and ridiculous lecture from Rogers that has to be watched to see the scolding father tone he adopts, all the while knowing he's full of crap, because Schiff clearly has him dead to rights. The information may have been buried somewhere, but the Committee clearly was not informed directly about these activities. If they had been, when Schiff asked his question of Clapper, Clapper wouldn't have tap danced like he did around the question. He would have just said, "We did inform you."
Here's a bit of the transcript, though you have to see the tone to believe it.
Rogers: I would argue that to say that we're in the dark is mystifying to me. Some members spend a lot more time based on their schedules, which are significant, in this Congress. But, it is disingenuous to imply that this Committee did not have a full and complete understanding of activities of the intelligence community, as was directed under the national intelligence priority framework, to include sources and methods.
Schiff: Will the Chairman yield?
Rogers: I would yield.
Schiff: Chairman, are you suggesting you and the Committee were informed of the wiretapping of foreign leaders if that report is correct?
Rogers: Well, I wouldn't confirm any specific activity by intelligence community. As the gentleman knows -- as I have highlighted -- that we have access to all sources and methods and there is lots of product to be reviewed by the Intelligence Committee, through the Intelligence Committee and through the members of the Committee. Any implication that through the reviews that this Committee would not be informed to the status that has been in question is not correct.
Schiff I'd be interested to know, Mr. Chairman --
Rogers: We would be happy to take you to the committee and spend a couple of hours going through mounds of product that would allow member to be as informed as a member wishes to be on sources and methods and all activities of the intelligence community under the national intelligence framework.
Schiff: I would just say --
Rogers: I think we need to be careful about what we talk about but I think it would be disingenuous to use the classification...
Schiff: ... I think it would be disingenuous, Mr. Chairman, to suggest we have information if we don't have it. I would like to find out just what we were informed by the intelligence community. I would also like to find out if this is in the posture that you sometimes see in litigation, where you're given a warehouse full of documents...
Rogers: Again, reclaiming my time. Reclaiming my time. This is a very unique Committee on Capitol Hill. It's the only committee on both sides of the chamber that has both military and civilian intelligence activities. That is an enormous responsibility for every member of this committee, enormous. We don't get to take personal staff from the office to assist in processing of information we may have to do as members of this committee. I think it is to the semantics of exactly who, what, when or why, if you're asking if intelligence community submits a selector to every engagement in their business to the intelligence committee, that would be ridiculous. And no one would receive information in that way, not even the Director of National Intelligence would receive it in that particular way. To know what the framework is and know what the guidelines are and know what the reporting is and go through the very significant oversight of this Committee and the review of the product, which is incredibly important to the end, and to say this Committee is somehow in the dark on intelligence activities simply is not accurate.
I think we need to be incredibly careful about making any assertions that somehow we're in the dark because that information is available in robust amounts of material in our particular Committee. It is time consuming. I get it. It's a very time consuming committee. Again, this feeds into this flame of misreporting about lack of oversight or our intelligence community is running around doing what they want to do outside of the law or any oversight is wrong. Again, I just caution members before you might make any statement to the contrary, I would argue that a significant portion of your time should be spent in the committee reviewing the materials available and made available by the Intelligence Committee accordance with the law we are charged to do. With that, Miss Bachmann.
Schiff: Mr. Chairman, can I --
Rogers: Nope.
Schiff: -- will you yield?
Rogers: No. Reclaiming my time. I will not. Miss Bachmann.
And, just for fun, I've left Bachmann's questions in the video if you'd like to see what was so important that Rogers had to "reclaim his time" and not allow Schiff to speak. It's a bunch of questions about just how evil Ed Snowden is, complete with making the entire panel state that Snowden is a traitor, despite not actually fitting the classification under the law. The only one who refused to play that game was James Cole who says considering the legal proceedings, he really can't comment, which Bachmann refuses to accept as an answer.
So, rather than actually get to the heart of the matter on an important question of whether or not the intelligence community actually provided this important information to the Committee, we're treated to a game of bogus name calling. Ladies and gentleman, this is "Congressional oversight" under the leadership of Mike Rogers.
We already wrote a bit about yesterday's House Intelligence Committee hearing concerning NSA surveillance. There were two sections to it: the first three hours were the top government spooks and lawmakers, and then the last half an hour or so involved three pundits outside of government (though with former government credentials). At the very very end of that, there was an absolutely incredible exchange between Intel Committee Chair Rep. Mike Rogers and law professor Stephen Vladeck (the only panelist the entire day who expressed concerns about what the NSA was doing). You have to watch the exchange to believe it, but it ends with Rogers insisting that "you can't have your privacy violated if you don't know your privacy is violated, right?" Vladeck immediately disagreed and Rogers seemed to find it astounding that anyone could agree, suggesting that it would upend the law. Watch the exchange:
If you don't watch the video, Rogers basically asks all three panelists if they think it's okay to do the kind of business records search that's currently done, and the two intelligence community apologists on the panel immediately agree. Vladeck suggests that there are caveats, and Rogers attacks him for equivocating, misattributing a quote about "give me a one-armed economist" (it was Harry Truman, but Rogers gives credit to Ronald Reagan). Vladeck again points out that the specifics matter, and notes that it's possible to agree with the concept of a program, but not the implementation of the program -- using the death penalty as a comparison. Rogers gets upset at this (bizarrely appearing to totally not comprehend the point Vladeck is making) and then finally Vladeck again points out that the process matters, and it's ridiculous to answer a substantive question about whether the concept makes sense without discussing the process, leading to the following, in which Rogers suggests there are no process questions because no one has complained:
Rogers: I would argue the fact that we haven't had any complaints come forward with any specificity arguing that their privacy has been violated, clearly indicates, in ten years, clearly indicates that something must be doing right. Somebody must be doing something exactly right.
Vladeck: But who would be complaining?
Rogers: Somebody who's privacy was violated. You can't have your privacy violated if you don't know your privacy is violated.
Vladeck: I disagree with that. If a tree falls in the forest, it makes a noise whether you're there to see it or not.
Rogers (astounded): Well that's a new interesting standard in the law. We're going to have this conversation... but we're going to have wine, because that's going to get a lot more interesting...
This is kind of astounding. According to Mike Rogers, you can apparently violate his privacy, so long as he doesn't know about it. How is it that such a person is supposedly in charge of oversight of the intelligence community? He honestly believes that as long as the NSA spies on people privately, their privacy isn't violated?
The House Intelligence Committee, led by chief NSA apologist Rep. Mike Rogers, held yet another hearing about the NSA scandal on Tuesday, with an official focus on "potential changes to the Foreign Intelligence Surveillance Act," but that was barely discussed at all. Instead, the panel, made up of Director of National Intelligence James Clapper, NSA boss Keith Alexander, Deputy Attorney General James Cole and number 2 guy at NSA Chris Inglis, mostly focused on defending the NSA, especially in light of the recent headlines concerning spying on foreign leaders. Rogers focused on tossing out a bunch of softball questions to the panel to get them to say that they had clearly informed the House Intelligence Committee about spying on foreign leaders. After the softballs were hit back, Rogers would add a stage-whispered "Hmm," followed by an angry attack on reporters for buying into the story that the NSA hadn't informed Congress.
Of course, given that Rogers' counterpart in the Senate, Dianne Feinstein, claims that she wasn't informed, this seems a bit strange. But it got even stranger when various other committee members, including Rep. Jan Schakowsky and Rep. Adam Schiff made it clear that they had no idea this was going, despite being on the committee.
That resulted in an incredible exchange, in which Rogers attacked others on the Committee, suggesting that they should just shut up if they're going to say they weren't informed -- hinting that some Committee members "do more work than others." Schiff, quite reasonably, appeared to take offense to this, and challenged Rogers, asking for more details as to when and how the Committee was told about spying on foreign leaders. Rogers without actually answering the question kept "warning" other members not to say something about this. Schiff broke in again (with Rogers trying to stop him from talking) to ask if the Committee was directly informed about this or if it was just a giant data dump of information that he would have had to go through carefully to find out who they were spying on. Rogers again refused to answer the question, and again hinted that those who put in the "effort" would have known about this -- and then flat out cut off Schiff and handed the floor to Rep. Michele Bachmann, who went back to tossing softballs (sample question: "Do you think Snowden is a traitor?").
In the end, Rogers weak attempt to continue to defend the NSA here made it pretty clear, once again, that the claims that he has not adequately informed others in Congress of what's going on are quite accurate.
Rep. Alan Grayson has been among the most outspoken members of Congress about the NSA's surveillance efforts, and his latest is an op-ed in the Guardian, in which he notes that Congressional "oversight" is really Congressional "overlook," and that he learns much more about the NSA from the press than from the House intelligence briefings:
Despite being a member of Congress possessing security clearance, I've learned far more about government spying on me and my fellow citizens from reading media reports than I have from "intelligence" briefings. If the vote on the Amash-Conyers amendment is any indication, my colleagues feel the same way. In fact, one long-serving conservative Republican told me that he doesn't attend such briefings anymore, because, "they always lie".
Many of us worry that Congressional Intelligence Committees are more loyal to the "intelligence community" that they are tasked with policing, than to the Constitution. And the House Intelligence Committee isn't doing anything to assuage our concerns.
We've covered in detail how House Intelligence chair Mike Rogers had blocked other Reps. from learning information about the spying program, refusing to answer questions or provide more access to certain Congressional Reps, as well as generally making sure that curious Reps can't find out the answers to their questions. Grayson goes into more detail:
I've requested classified information, and further meetings with NSA officials. The House Intelligence Committee has refused to provide either. Supporters of the NSA's vast ubiquitous domestic spying operation assure the public that members of Congress can be briefed on these activities whenever they want. Senator Saxby Chambliss says all a member of Congress needs to do is ask for information, and he'll get it. Well I did ask, and the House Intelligence Committee said "no", repeatedly. And virtually every other member not on the Intelligence Committee gets the same treatment.
Recently, a member of the House Intelligence Committee was asked at a town hall meeting, by his constituents, why my requests for more information about these programs were being denied. This member argued that I don't have the necessary level of clearance to obtain access for classified information. That doesn't make any sense; every member is given the same level of clearance.
There is no legal justification for imparting secret knowledge about the NSA's domestic surveillance activities only to the 20 members of the House Intelligence Committee. Moreover, how can the remaining 415 of us do our job properly, when we're kept in the dark – or worse, misinformed?
This is even more important than just a few concerned Congressional Reps. Just recently, we wrote about the FISA Court's defense of its latest renewal on the bulk metadata collection of phone records under Section 215 of the Patriot Act. A very key piece of that decision had to do with the FISA Court's belief that Congress was well-informed about the programs when it voted to renew Section 215 -- thus, arguing that Congress approves of such things. Grayson's comments (along with those of many other House Representatives -- not to mention the 207 Reps who voted for the Amash Amendment against such bulk collection) suggest that the FISA Court is simply wrong on this, but doesn't seem to care enough to find out the truth.
You have to hand it to Rep. Mike Rogers. Not only is he politically tone deaf to why people are so pissed off about NSA surveillance and privacy violations, but he appears to be culturally insulting as well. His latest is to defend last week's story about the NSA collecting information on 70 million calls in France to claim that the French ought to be "popping champagne bottles" to cheer on the NSA spying on them. Honestly, it would be difficult to make up a comment this clueless.
“If the French citizens knew exactly what that was about, they would be applauding and popping champagne corks. It’s a good thing. it keeps the French safe. It keeps the US safe. It keeps our European allies safe,” he added.
“This whole notion that we’re going to go after each other on what is really legitimate protection of nation-state interest, I think is disingenuous.”
At least he didn't suggest they should also enjoy some cheese. Of course, that presumes the only reason the US is spying on the French is to protect them against terrorists. But, if that were actually true, they wouldn't also be bugging the phones of leadership and politicians. To date, there is no indication that the spying on all of those calls was limited to "protecting" the French -- and Rogers' own next statement more or less confirms that this has always been about protecting US interests, not the French.
So, here's a simple question for Mike Rogers: would he be okay with sharing all of his phone and email records with the French? After all, perhaps they'll use it to protect him from harm. Even better, yet, why not release that information publicly. If it's just metadata, then there's no expectation of privacy, right? If Rogers releases all of his phone and email metadata for the past five years, I'll stop by his office the next time I'm in DC with a bottle of champagne.
Two weeks after Edward Snowden's first revelations about sweeping government surveillance, President Obama shot back. "We know of at least 50 threats that have been averted because of this information not just in the United States, but, in some cases, threats here in Germany," Obama said during a visit to Berlin in June. "So lives have been saved."
In the months since, intelligence officials, media outlets, and members of Congress from both parties all repeated versions of the claim that NSA surveillance has stopped more than 50 terrorist attacks. The figure has become a key talking point in the debate around the spying programs.
"Fifty-four times this and the other program stopped and thwarted terrorist attacks both here and in Europe -- saving real lives," Rep. Mike Rogers, a Michigan Republican who chairs the House Intelligence Committee, said on the House floor in July, referring to programs authorized by a pair of post-9/11 laws. "This isn't a game. This is real."
But there's no evidence that the oft-cited figure is accurate.
The NSA itself has been inconsistent on how many plots it has helped prevent and what role the surveillance programs played. The agency has often made hedged statements that avoid any sweeping assertions about attacks thwarted.
A chart declassified by the agency in July, for example, says that intelligence from the programs on 54 occasions "has contributed to the [U.S. government's] understanding of terrorism activities and, in many cases, has enabled the disruption of potential terrorist events at home and abroad" -- a much different claim than asserting that the programs have been responsible for thwarting 54 attacks.
NSA officials have mostly repeated versions of this wording.
When NSA chief Gen. Keith Alexander spoke at a Las Vegas security conference in July, for instance, he referred to "54 different terrorist-related activities," 42 of which were plots and 12 of which were cases in which individuals provided "material support" to terrorism.
But the NSA has not always been so careful.
During Alexander's speech in Las Vegas, a slide in an accompanying slideshow read simply "54 ATTACKS THWARTED."
And in a recent letter to NSA employees, Alexander and John Inglis, the NSA's deputy director, wrote that the agency has "contributed to keeping the U.S. and its allies safe from 54 terrorist plots." (The letter was obtained by reporter Kevin Gosztola from a source with ties to the intelligence community. The NSA did not respond when asked to authenticate it.)
Asked for clarification of the surveillance programs' record, the NSA declined to comment.
Earlier this month, Sen. Patrick Leahy, D-Vt., pressed Alexander on the issue at a Senate Judiciary Committee hearing.
"Would you agree that the 54 cases that keep getting cited by the administration were not all plots, and of the 54, only 13 had some nexus to the U.S.?" Leahy said at the hearing. "Would you agree with that, yes or no?"
"Yes," Alexander replied, without elaborating.
It's impossible to assess the role NSA surveillance played in the 54 cases because, while the agency has provided a full list to Congress, it remains classified.
Officials have openly discussed only a few of the cases (see below), and the agency has identified only one -- involving a San Diego man convicted of sending $8,500 to Somalia to support the militant group Al Shabab -- in which NSA surveillance played a dominant role.
The surveillance programs at issue fall into two categories: The collection of metadata on all American phone calls under the Patriot Act, and the snooping of electronic communications targeted at foreigners under a 2007 surveillance law. Alexander has said that surveillance authorized by the latter law provided "the initial tip" in roughly half of the 54 cases. The NSA has not released examples of such cases.
After reading the full classified list, Leahy concluded the NSA's surveillance has some value but still questioned the agency's figures.
"We've heard over and over again the assertion that 54 terrorist plots were thwarted" by the two programs, Leahy told Alexander at the Judiciary Committee hearing this month. "That's plainly wrong, but we still get it in letters to members of Congress, we get it in statements. These weren't all plots and they weren't all thwarted. The American people are getting left with the inaccurate impression of the effectiveness of NSA programs."
The origins of the "54" figure go back to a House Intelligence Committee hearing on June 18, less than two weeks after the Guardian's publication of the first story based on documents leaked by Snowden.
At that hearing, Alexander said, "The information gathered from these programs provided the U.S. government with critical leads to help prevent over 50 potential terrorist events in more than 20 countries around the world." He didn't specify what "events" meant. Pressed by Rep. Jim Himes, D-Conn., Alexander said the NSA would send a more detailed breakdown to the committee.
Speaking in Baltimore the next week, Alexander gave an exact figure: 54 cases "in which these programs contributed to our understanding, and in many cases, helped enable the disruption of terrorist plots in the U.S. and in over 20 countries throughout the world."
But members of Congress have repeatedly ignored the distinctions and hedges.
The websites of the Republicans and Democrats on the House Intelligence Committee include pages titled, "54 Attacks in 20 Countries Thwarted By NSA Collection."
And individual congressmen have frequently cited the figure in debates around NSA surveillance.
Rep. Lynn Westmoreland, R-Ga., who is also on the House Intelligence Committee, released a statement in July referring to "54 terrorist plots that have been foiled by the NSA programs." Asked about the figure, Westmoreland spokeswoman Leslie Shedd told ProPublica that "he was citing declassified information directly from the National Security Agency."
Rep. Brad Wenstrup, R-Ohio, issued a statement in July saying "the programs in question have thwarted 54 specific plots, many targeting Americans on American soil."
Rep. Joe Heck, R-Nev., issued his own statement the next day: "The Amash amendment would have eliminated Section 215 of the Patriot Act which we know has thwarted 54 terrorist plots against the US (and counting)." (The amendment, which aimed to bar collection of Americans' phone records, was narrowly defeated in the House.)
Mike Rogers, the Intelligence Committee chairman who credited the surveillance programs with thwarting 54 attacks on the House floor, repeated the claim to Bob Schieffer on CBS' "Face the Nation" in July."You just heard what he said, senator," Schieffer said, turning to Sen. Mark Udall, D-Colo., an NSA critic. "Fifty-six terror plots here and abroad have been thwarted by the NSA program. So what's wrong with it, then, if it's managed to stop 56 terrorist attacks? That sounds like a pretty good record." Asked about Rogers' remarks, House Intelligence Committee spokeswoman Susan Phalen said in a statement: "In 54 specific cases provided by the NSA, the programs stopped actual plots or put terrorists in jail before they could effectuate further terrorist plotting. These programs save lives by disrupting attacks. Sometimes the information is found early in the planning, and sometimes very late in the planning. But in all those cases these people intended to kill innocent men and women through the use of terror."
Rep. James Lankford, R-Okla., went even further in a town hall meeting in August. Responding to a question about the NSA vacuuming up Americans' phone records, he said the program had "been used 54 times to be able to interrupt 54 different terrorist plots here in the United States that had originated from overseas in the past eight years. That's documented."
The same day, Rep. Jim Langevin, D-R.I., who sits on the Intelligence Committee, defended the NSA at a town hall meeting with constituents in Cranston, R.I. "I know that these programs have been directly effective in thwarting and derailing 54 terrorist attacks," he said. Asked about Langevin's comments, spokeswoman Meg Fraser said in an email, "The committee was given information from NSA on August 1 that clearly indicated they considered the programs in question to have been used to help disrupt 54 terrorist events. That is the information the Congressman relied on when characterizing the programs at his town hall."
Wenstrup, Heck and Lankford did not respond to requests for comment.
The claims have also appeared in the media. ABC News, CNN and the New York Times have all repeated versions of the claim that more than 50 plots have been thwarted by the programs.
The case of Basaaly Moalin, the San Diego man convicted of sending $8,500 to Somalia to support Al Shabab, the terrorist group that has taken responsibility for the attack on a Kenyan mall last month. The NSA has said its collection of American phone records allowed it to determine that a U.S. phone was in contact with a Shabab figure, which in turn led them to Moalin. NSA critic Sen. Ron Wyden, D-Ore., has argued that the NSA could have gotten a court order to get the phone records in question and that the case does not justify the bulk collection of Americans' phone records.
The case of Najibullah Zazi, who in 2009 plotted to bomb the New York subway system. The NSA has said that an email it intercepted to an account of a known Al Qaeda figure in Pakistan allowed authorities to identify and ultimately capture Zazi. But an Associated Press examination of the case concluded that, again, the NSA's account of the case did not show the need for the new warrantless powers at issue in the current debate. "Even before the surveillance laws of 2007 and 2008, the FBI had the authority to -- and did, regularly -- monitor email accounts linked to terrorists," the AP reported.
A case involving David Coleman Headley, the Chicago man who helped plan the 2008 Mumbai terrorist attack. Intelligence officials have said that NSA surveillance helped thwart a subsequent plot involving Headley to attack a Danish newspaper. A ProPublica examination of that episode concluded that it was a tip from British intelligence, rather than NSA surveillance, that led authorities to Headley.
A case involving a purported plot to attack the New York Stock Exchange. This convoluted episode involves three Americans, including Khalid Ouazzani of Kansas City, Mo., who pleaded guilty in 2010 to bank fraud, money laundering, and conspiracy to provide material support to Al Qaeda. An FBI official said in June that NSA surveillance helped in the case "to detect a nascent plotting to bomb the New York Stock Exchange." But no one has been charged with crimes related to that or any other planned attack. (Ouazzani was sentenced to 14 years last month.) The Kansas City Star reported that one of the men in the case had "pulled together a short report with the kind of public information easily available from Google Earth, tourist maps and brochures" and that his contact in Yemen "tore up the report, 'threw it in the street' and never showed it to anyone." Court records also suggest that the men in Yemen that Ouazzani sent over $20,000 to may have been scamming him and spent some of the money on personal expenses.
For more from ProPublica on the NSA, read about the agency's campaign to crack Internet security, a look at the surveillance reforms Obama supported before he was president, and a fact-check on claims about the NSA and Sept. 11.
More evidence keeps surfacing showing Intelligence Committee members are simply jerking around their fellow Senate and Congress members when it comes to providing the documents needed to provide oversight for the NSA. Tony Romm's engrossing article for Politico refers to this deliberate obfuscation (tactfully) as "some limits," but adding what's been newly discovered to what we already know shows that the heads of the Intelligence Committees aren't really interested in collaborating with their colleagues to provide credible oversight.
The White House is its own problem, continually insisting (along with national intelligence officials) that everyone, both in the Congress and Senate, has had access to all pertinent briefings, rulings and other needed info -- even when it knows for a fact this information has not been disseminated. This helps the administration maintain its narrative of a well-oiled intelligence machine operating with the explicit permission of its oversight and allows the blame to be shifted elsewhere. If the American public is angry about the NSA's programs, the White House wants to aim that at legislators, rather than the NSA and administration.
If it's not Mike Rogers and Dutch Ruppersberger stashing documents or scheduling briefings at inconvenient times, it's the administration itself handing out "information" that glosses over details that should rightfully concern those charged with oversight.
One Obama administration report provided to lawmakers last year, for example, only opaquely referenced the NSA’s unlawful collection of thousands of Americans’ emails. The document, declassified this fall, didn’t mention that a secret court had rebuked the agency for its misleading statements.
These omissions add up. The picture being presented by the administration isn't complete and points fingers at Congress for lapses in oversight.
The scathing rebuke issued in 2011 by Judge Walton concerning the NSA's repeated abuse of its domestic surveillance capabilities over the previous three years was never seen by most legislators in its entirety until its declassification in August of this year. James Clapper has insisted lawmakers have already seen all pertinent information regarding the NSA's bulk collections, but Politico points out that this statement simply can't be true.
The Obama administration’s communication with the Hill, however, didn’t tell the story of an agency rebuked by the FISA court in 2011 for “a substantial misrepresentation regarding the scope of a major collection program.”
Instead, lawmakers got only one paragraph about the mishap, which had been obscured with technical details about “multi-communication transactions.” Meanwhile, the administration touted the incident as a case study defending the NSA’s existing oversight mechanisms.
Making matters worse is the limitations surrounding any revelations being brought to the attention of legislators. In addition to the obfuscation and stonewalling shown by the leaders of the House Intelligence Committee, legislators are hamstrung by the secrecy surrounding the documents themselves.
[M]any Hill staff sources interviewed by POLITICO noted it may not have been easy for their bosses to digest that report: Lawmakers in many cases weren’t able to bring their own legal advisers or take notes, and they had to view the document in a special part of the Capitol reserved for classified material.
Speaking of Rogers, we already know he withheld documents from House members shortly before voting on the Amash Amendment began and, in his latest move, sent invitations to attend an intelligence briefing to the Congressional junk mail inbox -- a briefing which was held on a Friday afternoon, long after most reps had returned to their districts. As to whether a "critical" document made its way to other members of Congress in 2012, Rogers simply isn't saying.
The chairman of the Intelligence Committee, Rogers, and the panel’s ranking Democrat, Dutch Ruppersberger of Maryland, declined to say whether they even had sent a letter in 2012 informing members there had been a critical document to view. Hill sources say they don’t recall anything of the sort.
The House Republicans held off on holding briefings until two days before the 2012 vote on reauthorizing the FISA Amendments Act. The invitation obtained by Politico makes no mention of the administration white paper detailing the NSA's "erroneous" collection of Americans' data.
On the plus side, the Senate Committee has done a better job (by comparison) at informing other senators, despite Dianne Feinstein's and Saxby Chambliss' unwavering support of the intelligence agency. But even their June 19th briefing invitation glossed over Judge Walton's 2011 rebuke of the agency's three-year run of privacy violations.
In the push for further transparency and (actual) oversight, legislators are finding themselves working against both intelligence committees -- committees that were set up to provide oversight, not run interference for intelligence agencies. Mike Rogers, in particular, has been completely hostile to other members of Congress, turning their attempts to gain knowledge and provide competent oversight into a "sick game of 20 questions," requiring reps to grasp about blindly until they stumble across a relevant question intelligence officials can't dodge.
Unfortunately, the many legislative efforts in the works aimed at reining in the NSA's collection capabilities will suffer from the same opacity, as concerns (mostly exaggerated) about national security will push these markup sessions behind closed doors. And once they're out of the public eye, the defenders of the surveillance state will find it much easier to pitch unsupported claims as justification for continuing "business as usual."
