Intelligence Oversight Tries Again With Zero-Reform Section 702 Bill, Criticizes Reform Efforts As Threats To Security

from the tireless-in-their-unquestioning-defense-of-the-agencies-they-'oversee' dept

The Congressional showdown on Section 702 reforms/renewal continues to generate little actual debate or reform -- but plenty of bad proposals. Both the House and Senate Intelligence Committees have decided there should be a renewal -- preferably an extended one -- with zero actual reform.

Members of the House offered up some tepid reforms in the USA Liberty Act, only to find this offering blocked by the House Permanent Select Committee on Intelligence (HPSCI), which offered a zero-reform package at the last minute. Fortunately, no one was able to tack a lousy non-reform bill to the tailend of the annual budget bill, thereby dodging reform discussions and giving the NSA a surveillance blank check for the next 5-10 years.

Having been stiff-armed for a few weeks, the HPSCI has put together another Section 702 "reform" bill that does nothing to change the status quo and actually has the possibility of making things worse.

Sharon Franklin discusses the many, many problems with the House Committee bill at Just Security. What the committee offers up as reforms is language that can (and will) be read as allowing the NSA (and other agencies) to conduct themselves as they have for years -- this time with the explicit statutory authority granted to them by their supposed oversight.

Proponents of the Intelligence Committee’s bill contend that it presents a compromise approach to addressing both of these privacy risks, and that recent modifications to the bill address the concerns of privacy advocates. In reality, the bill includes no meaningful reform on either issue – or any other real reforms to Section 702. Instead, the Intelligence Committee’s bill would codify these two practices and risk expanding the government’s surveillance authority.

Codification would include the NSA's abandoned "about" email collection. The NSA voluntarily ditched this program because it couldn't stop collecting US persons' communications with this untargeted collection. This bill would allow the NSA to turn the collection back on, provided no introduced legislation specifically demanding the permanent shutdown of this collection method within 30 days of the NSA's notice. Worse, it would possibly allow the NSA to expand the scope of an already vaguely-targeted collection.

First, it could be interpreted by the government to permit unintentional “about” collection, such as where the Intelligence Community knows a certain technique results in “about” collection, but since that technique is not specifically intended to collect “about” communications, it engages in that collection nonetheless. Second, because the bill defines an “abouts communication” as “a communication that contains a reference to, but is not to or from, a target,” there is a risk that the bill could be interpreted to allow the government to collect communications that merely reference a target, such as mentioning a target’s name. Currently, the government may only collect communications that include a target’s “selector,” such as a target’s email or phone number.

The bill would also leave the backdoor search loophole wide open. The FBI (and other agencies) query NSA collections for information not necessarily related to national security investigations through this backdoor search, allowing them to use ostensibly foreign-facing collections for domestic policework. The bill does add a warrant requirement for these sorts of non-national-security-related searches, but this would only apply to "predicated investigations." This would allow the FBI to make use of NSA databases in other forms of investigations, including preliminary investigations -- all of which are based on less probable cause than "predicated" investigations. In other words, the FBI would be required to get a warrant during the final stages of a criminal investigation but need nothing to engage in fishing expeditions using NSA collections.

The HPSCI is also on the attack, trying to prevent other reform legislation from gaining supporters. It has gone so far as to portray support for competing bills containing actual reforms as threats to national security. Ron Wyden's office has issued a debunking of the HPSCI's outlandish claims.

HPSCI Majority allegation: USA RIGHTS will recreate a pre-9/11 “wall” preventing the Intelligence Community and law enforcement from sharing terrorism information.

Fact: Nothing in the USA RIGHTS Act prevents sharing of terrorism information.

HPSCI Majority allegation: USA RIGHTS prevents the IC from “uncovering plots against the United States and saving potential hostages via limitations on the ability to conduct U.S. person queries…”

Fact: USA RIGHTS, which requires a warrant for U.S. person searches of 702 data, includes an exception to rescue hostages, as well as an emergency provision that allows the government to search first and seek a warrant later. In addition, the government has other FISA tools, such as Section 215, that would allow it to swiftly “connect the dots” between suspects and terrorists without a probable cause warrant.

HPSCI Majority allegation: USA RIGHTS limits the government’s ability to obtain terrorism information by “unnecessarily restricting when the Government may ask for technical assistance from electronic communication service providers.”

Fact: Recent statements from the government indicate that it interprets Section 702 to allow it to direct electronic communication service providers to alter encryption. Even supporters of government-mandated weakening of strong encryption have argued for court orders. USA RIGHTS merely requires that the FISA Court oversee any such directives and ensures that those directives are tailored to the surveillance at issue.

HPSCI Majority allegation: USA RIGHTS would prevent NSA from “understanding foreign threat networks by permanently ending NSA’s ‘abouts’ collection.”

Fact: The “abouts” collection, which could include communications to and from innocent Americans on whom there is no suspicion, was suspended by the government due to significant compliance problems. If the government wishes to resume the “abouts” collection, it can always seek those authorities from Congress.

HPSCI Majority allegation: USA RIGHTS allows terrorists and spies to sue the U.S. government.

Fact: It is a basic tenet of the rule of law that surveillance authorities can be challenged in court. USA RIGHTS merely ensures that the government cannot abuse the secrecy of Section 702 to keep it from ever being challenged by anyone.

This is only a small part of the many claims the HPSCI has made in hopes of heading off any real challenge to its zero-reform Section 702 legislation. It's pretty sickening this is coming from legislators charged with subjecting surveillance efforts to intense scrutiny. The HPSCI has never held up any of the NSA's dubious claims as examples of untrustworthy behavior or as a threat to Americans' privacy. Instead, it focuses its attention on those who won't grant the NSA a pass it hasn't earned.

Either way, this issue is coming to a head today. House leadership tried to "appease" those who actually support the 4th Amendment by allowing just one amendment to be voted on -- good amendment by Reps. Justin Amash and Zoe Lofgren. House leadership apparently expects the amendment to fail, and then their awful bill to squeak across the finish line. In response, there's been a pretty frantic effort on both sides to garner support -- leading to the HSPCI's misleading attacks on the amendment.

If enough Reps in the House actually grasp what's at stake, and vote for the Amash/Lofgren amendment, it would be a pretty big game changer, and perhaps push the Senate away from its own bad proposals. If not, it will mean that a majority of our elected officials think that the 4th Amendment and the privacy of Americans is not particularly important. So right about now might be a good time to contact your representative to see where they stand on this.

Filed Under: 4th amendment, devin nunes, house intelligence committee, justin amash, nsa, section 702, surveillance, zoe lofgren

How Congress Secretly Just Legitimized Questionable NSA Mass Surveillance Tool

from the just-slipped-it-right-in dept

We recently noted that, despite it passing overwhelmingly, Congress quietly deleted a key bit of NSA reform that would have blocked the agency from using backdoors for surveillance. But this week something even more nefarious happened, and it likely would have gone almost entirely unnoticed if Rep. Justin Amash's staffers hadn't caught the details of a new provision quietly slipped into the Intelligence Authorization Act, which effectively "legitimized" the way the NSA conducts most of its mass surveillance.

For a while now, we've discussed executive order 12333, signed by President Ronald Reagan, which more or less gives the NSA unchecked authority to tap into any computer system not in the US. Over the summer, a former State Department official, John Napier Tye, basically blew the whistle on 12333 by noting that everyone focused on other NSA programs were missing the point. The NSA's surveillance is almost entirely done under this authority, which has no Congressional oversight. All those other programs we've been arguing about -- Section 215 of the Patriot Act or Section 702 of the FISA Amendments Act -- are really nothing more than ways to backfill the data the NSA has been unable to access under 12333. In other words, these other programs are the distraction. 12333 is the ballgame, and it has no Congressional oversight at all. It's just a Presidential executive order.

Yet, what Amash and his staffers found is that a last minute change by the Senate Intelligence Committee to the bill effectively incorporated key parts of EO 12333 into law, allowing for "the acquisition, retention, and dissemination" of "nonpublic communications." Here's where those who slipped this bit into the law got sneaky. Recognizing that they might be called on it, they put it in with language noting that such information could only be held on to for five years -- and then claimed what they were really doing was putting a limit on data already collected:

Backers of the section argue it would actually limit to five years the amount of time communications data could be kept at intelligence agencies, certain exceptions permitting. But it is generally acknowledged that such data is already rarely kept beyond five years, which Amash characterized as a trade-off that "provides a novel statutory basis for the executive branch's capture and use of Americans' private communications."

"The provisions in the intel authorization appear to be an attempt by Congress to place statutory restrictions on the retention of information collected under Executive Order 12333, which is not subject to court oversight, has not been authorized by Congress, and raises serious privacy concerns," said Neema Guliani, legislative counsel with the American Civil Liberties Union. "However, these restrictions are far from adequate, contain enormous loopholes, and notably completely exclude the information of non-U.S. persons."

This seems particularly nefarious. In trying to claim that they're putting a limit on this activity (that's already happening) they can claim that they're not really expanding the power of the NSA and the surveillance state. But, by putting it in law, rather than just having it in an executive order, they're effectively legitimatizing the practice, and making it much harder to roll back.

And they did it all quietly without any debate.

That's massively troubling. Inserting such a major power into the law at the very least deserves (and should require) a full and fair public debate about the issue and whether or not it is truly needed. Doing it in secret, at the last minute, with no public acknowledgement or discussion, and then pretending it's about "limits" rather than legitimizing what's in EO 12333 is really, really nefarious.

Unfortunately, even with Rep. Amash raising the alarm about it, the bill easily passed 325 to 100, without most in Congress probably having any idea about this issue and what it meant. Rep. Zoe Lofgren claimed that if Congress fully understood the provision, it almost certainly wouldn't have passed:

"If this hadn't been snuck in, I doubt it would have passed," said Rep. Zoe Lofgren, a California Democrat who voted against the bill. "A lot of members were not even aware that this new provision had been inserted last-minute. Had we been given an additional day, we may have stopped it."

This is the kind of crap that the intelligence community keeps pulling, and it's why there's so much that's troubling in the way they play the legislative game. Not only do they write the legislative language in sneaky ways that they can carefully interpret themselves -- they then get "friends" in Congress to quietly insert the language when no one's looking. By putting it in bills that have to pass, these things get put into the law and aren't at all easy to remove.

Filed Under: 12333, congress, eo 12333, executive order 12333, intelligence authorization act, justin amash, nsa, surveillance, zoe lofgren

Attempt To Frame Justin Amash's Protection Of Civil Liberties As 'Supporting Terrorists' Fails Miserably At The Polls

from the wake-up-authoritarians dept

Rep. Justin Amash has been one of the most involved and active voices in Congress on pushing back against the intelligence community's overreach and attack on our civil liberties. Many folks know him for the Amash Amendment, which would have defunded the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act. While it was narrowly defeated, it certainly woke up many in Congress to the fact that the surveillance scandal was a real deal. Over the last year, though, we'd been hearing more and more stories about how the "mainstream Republicans" were looking to unseat Amash in the primaries. Amash is often identified as being in the "Tea Party" wing of the party, and sometimes described as more "libertarian."

The very powerful US Chamber of Commerce targeted Amash as an "easy target" to oust, arguing that his views on civil liberties put him at odds with the (many) conservative voters in his district. The primary attack on him focused heavily on Amash's support for civil liberties, directly arguing that such protection of our civil liberties meant he was "supporting terrorists." Here, for example, is a campaign ad his primary opponent Brian Ellis used against him, quoting someone referring to Amash as "Al Qaeda's best friend in Congress" and claiming Amash wanted to "shut down American intelligence for monitoring terrorists." It quotes a veteran saying: "It makes no sense. We were out there fighting for the country and he's voting against anything that would help us." It's exactly the kind of campaign that you might expect would work in a heavily conservative, "American values" kind of district that Amash represents, if you believe in the traditional narratives and stereotypes. However, that effort failed miserably, and as Conor Friedersdorf explains, that's a good sign for civil liberties. There's this ridiculous narrative that "conservative" voters are in favor of surveillance and against protecting civil liberties, but that's always been a silly argument. Protecting civil liberties isn't "supporting terrorists," it's a fundamental concept in the Constitution and should be seen as an American value that cuts across any partisan divide.

His easy primary victory already matters because it shows that Republicans who want to rein in the NSA, repeal the Patriot Act, and close the prison at Guantanamo Bay can win a primary vote handily—even in a safe Republican district where a shameless opponent tries to portray them as siding with the enemy.

Amash's victory in the primary gives a bit of hope for civil liberties. It suggests that voters aren't the stereotypical morons that the traditional narratives often make them out to be. They can understand how protecting civil liberties should be a truly American ideal and it doesn't mean you're supporting terrorists. Earlier this year, the Republican National Committee came out against bulk surveillance by the NSA. It's increasingly becoming clear that the narrative that "Republicans have to support surveillance" is not an accurate story at all.

Bonuse: Amash's victory speech does not pull any punches in calling out the campaign against him.

Filed Under: 4th amendment, brian ellis, civil liberties, conservatives, justin amash, libertarians, republicans, tea party
Companies: us chamber of commerce

Stop The NSA's Backdoor: Call Congress Today To Support Key Amendment

from the speak-up-now dept

Last week, we noted that there was an effort underway to introduce an amendment for this week's Defense Appropriations bill in the House that would effectively limit some of the most nefarious aspects of the NSA's ability to spy on Americans via two different types of backdoors: (1) so-called "backdoor searches" on Americans' information collected under Section 702 of the FISA Amendments Act and (2) mandating tech companies build in backdoors to their technology for the NSA to go snooping. The Defense Appropriations bill is expected to hit the House floor sometime soon, under open rules, meaning that the amendment in question won't be blocked by the House Rules Committee, as happens on a variety of other bills.

The amendment has powerful bipartisan backing, sponsored by Reps. James Sensenbrenner, Thomas Massie and Zoe Lofgren, along with co-sponsors Reps. Conyers, Poe, Gabbard, Jordan, O’Rourke, Amash, and Holt. Having Sensenbrenner bring out this amendment is a big deal. This amendment would restore at least one aspect of the USA Freedom Act that was stripped out at the last minute under pressure from the White House. Sensenbrenner sponsoring this bill highlights that he's clearly not satisfied with how his own bill got twisted and watered down from the original, and he's still working to put back in some of the protections that were removed. Conyers is a powerful force on the other side of the aisle, whose support for the USA Freedom Act was seen by some as a signal that the bill was "okay" to vote on. Having both of them support this Amendment suggests that neither were really that satisfied with the bill and felt pressured into supporting it.

While this Amendment doesn't fix everything, it is an important chance for members of Congress to show that they really do support protecting Americans' privacy. But they need to know that. Please contact your Representative today to let them know you want them to support this amendment. The EFF and others have set up a website, ShutTheBackDoor.net, to help you contact your official. Please do so today.

Filed Under: backdoors, defense appropriations, jim sensenbrenner, john conyers, justin amash, mandates, nsa, surveillance, thomas massie, zoe lofgren

House Reauthorizes Intelligence Community Funding; Refuses To Consider Amendments To Limit Domestic Surveillance

from the because-of-course dept

This is hardly a surprise given the events of the past few weeks, but the House on Friday passed legislation to authorize intelligence activities for the next year. It sailed through easily, 345 to 59. While a number of Representatives, including Zoe Lofgren, Justin Amash and Rush Holt attempted to make amendments that would do things like stop the NSA from adding back doors to encryption, or beef up whistleblower protections, I imagine it will surprise none of you to discover that the Rules Committee did not allow those amendments to come up for a vote.

Notably, those three Reps whose amendments were ignored also voted against the overall reauthorization. It's interesting to note that Rep. Sensenbrenner voted against the reauthorization as well, though it's not clear why. Rep. Alan Grayson actually introduced a bunch of amendments to curb the NSA's powers, none of which were allowed, but he still voted in favor of the overall authorization. In the end, this reauthorization was going to go through one way or the other, so this isn't a huge surprise. With the failure of most of what was good in the USA Freedom Act in the House, it quickly became clear that the House wasn't going to fix things any time soon.

Filed Under: amendments, funding, intelligence, justin amash, reauthorization, rush holt, zoe lofgren

Amendments Offered To NDAA To Try To Stop NSA Surveillance Abuse

from the forcing-hands dept

If you're wondering why the USA Freedom Act finally started moving forward again, a good place to look is tomorrow's vote on re-upping the NDAA (National Defense Authorization Act), with a variety of folks in the House proposing amendments that would lead to defunding certain NSA activities. As you may recall, last year, Rep. Justin Amash proposed defunding the NSA's Section 215 bulk data collection program, which came very close to passing. Fearing a similar effort, the House leadership decided to finally get moving on USA Freedom. Of course, with USA Freedom watered down, attention is turning back to the NDAA Amendments, with the vote on all of this happening tomorrow.

There are a ton of amendments, many of which won't get anywhere at all, but Amash is back with a few amendments, along with Reps. Zoe Lofgren, Rush Holt, Alan Grayson and some others. Amash, Lofgren and Holt have teamed up for a couple of amendments trying to block bulk collection under Section 215. Meanwhile Lofgren and Holt have an amendment to deny funding for the NSA's weakening of encryption and inserting back doors in technology. Lofgren and Amash, along with Rep. Thomas Massie, have an amendment defunding Section 702 "warrantless wiretapping" efforts. Grayson goes for the gold with an amendment that would block funds for any surveillance done on American citizens inside the US without probable cause. While there's no way this amendment will get approved, it's basically just saying "hey, you know what, we should obey the 4th Amendment."

Filed Under: alan grayson, amendments, justin amash, ndaa, rush holt, zoe lofgren

Congressional Reps Ask Bruce Schneier To Explain To Them What The NSA Is Doing, Because The NSA Won't Tell Them

from the look-at-that dept

This is both depressing and good news at the same time. A group of Congressional Representatives (who are among the most critical of the NSA) apparently asked Bruce Schneier to come brief them on what the NSA is doing because the NSA won't tell them:

This morning I spent an hour in a closed room with six Members of Congress: Rep. Logfren, Rep. Sensenbrenner, Rep. Scott, Rep. Goodlate, Rep Thompson, and Rep. Amash. No staffers, no public: just them. Lofgren asked me to brief her and a few Representatives on the NSA. She said that the NSA wasn't forthcoming about their activities, and they wanted me -- as someone with access to the Snowden documents -- to explain to them what the NSA was doing. Of course I'm not going to give details on the meeting, except to say that it was candid and interesting. And that it's extremely freaky that Congress has such a difficult time getting information out of the NSA that they have to ask me. I really want oversight to work better in this country.

There's really not much more to be said about that, other than it shows what a complete joke it is for anyone to claim that Congress has real oversight over the NSA. It's great that these Reps would reach out to someone with qualifications like Schneier to have this kind of conversation. It's depressing that such a thing was necessary.

Filed Under: bob goodlatte, bruce schneier, congress, jim sensenbrenner, justin amash, nsa, oversight, security, surveillance, zoe lofgren

More Examples Of How The House Intelligence Committee Limits Oversight, Rather Than Does Oversight

from the you're-supposed-to-BE-the-oversight,-not-PREVENT-it dept

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."

Filed Under: house intelligence committee, justin amash, mike rogers, nsa, nsa surveillance

Justin Amash: Mike Rogers Isn't Overseeing The Intelligence Community, He's Conspiring To Cover Up Its Activities

from the does-the-nsa-have-a-talking-bear? dept

Rep. Justin Amash has been highlighting for months how Rep. Mike Rogers, the head of the House Intelligence Committee seems to have gone out of his way to withhold information from Congress. In a recent speech, he teed off on Rogers, noting that while his job as head of the Intelligence Committee is supposed to be "oversight," it's actually been one of collusion with the White House to "cover up" the intelligence community's activities. Amash also responded to completely misleading (and, frankly, insulting) statements from Rogers' office implying that Rogers did make the necessary information "available" by inviting them to "classified briefings." However, Amash explained how those sessions were ridiculous because they weren't explanations about what was going on, but a sick game of 20 questions where Reps who were interested had to poke around in the dark:

But Amash said that intelligence officials are often evasive during classified briefings and reveal little new information unless directly pressed.

"You don't have any idea what kind of things are going on," Amash said. "So you have to start just spitting off random questions. Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don't know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of twenty questions."

Of course, now I want to know about the NSA's talking bear. And the moon base.

Filed Under: briefings, intelligence committee, justin amash, mike rogers, nsa, nsa surveillance

How Mike Rogers Buries NSA-Related Documents, While Pretending He Made Them Available

from the 'oversight'-in-Congress-apparently-limited-to-the-agency's-biggest-f dept

Representative Mike Rogers heads up the House Intelligence Committee and he, along with Dutch Ruppersberger, have taken a squarely antagonistic stance against any other members of Congress who wish to do perform the oversight duties they're tasked with. This attitude has resulted in a wholly uninformed Congress which relies on the Intelligence Committee to disseminate information on surveillance programs.

Rogers' stance has been unapologetically pro-NSA and pro-surveillance. At no point has he acted as if he represents anything more than the interests of the surveillance state.

Rogers has blocked requests for info from other Congress members (in advance of the voting for Justin Amash's NSA-defunding amendment) and withheld key documents from incoming Congress members. As Amash has pointed out, documents the Committee shared in February of 2010 were not shared with incoming Congress members in 2011.

A statement released by the spokesperson for the House Intelligence Committee disputes this:

“The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee’s legal obligation to carefully protect the sensitive intelligence sources and methods that our intelligence agencies use to keep the American people safe. Prior to voting on the PATRIOT Act reauthorization and the FISA Amendments Act reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered.

“It is unfortunate that some of the Members now attacking the Committee chose not to avail themselves of the opportunity back when these programs were not discussed so prominently in the news media.”

But this statement directly contradicts the DOJ white paper, which mentions nothing at all about Rogers providing this information to other Congress members. Prior to that, Rep. Silvestre Reyes handled the 2010 pre-vote briefings and he made those documents available in a very accommodating way.

In advance of the anticipated House consideration of a one-year extension of the three provisions described above, the Attorney General and the Director of National Intelligence have provided a classified document to the congressional intelligence committees on important collection programs made possible by these expiring authorities. They have asked for the Committee's assistance in making that document available to interested members of Congress.

I have agreed to accommodate this request, and Chairman Conyers and I will make Judiciary and Intelligence Committee staff available to meet with any member who has questions. The Attorney General and DNI will also make Dept. of Justice and Intelligence Community personnel available if needed.

If you are interested in reviewing this classified document, please contact the Committee's scheduler, Stephanie Leaman, at x57690, to set up an appointment in the Committee offices...

Contrast Reyes' approach with Rogers' tactics. Justin Amash details how a document (released in August) meant to be viewed by all members of Congress was buried by Rogers using methods that would allow him to claim it was "made available," but still minimize the number of Congress members who would actually see it.

An important national-security document the libertarian Michigan Republican and some of his colleagues on the House Permanent Select Committee on Intelligence had been trying to see for some time was made available to all members on less than 24 hours' notice by the Intelligence Committee chair, with a viewing scheduled for when they were supposed to be voting, and on the very day Congress was set to begin its five-week summer recess. And the email went out through the "e-Dear Colleague" system, where it was buried.

Amash explains the "e-Dear Colleague" system and how it's the last place anyone's going to look for important correspondence.

This is a system that, it's almost like a spam folder, frankly. Not everyone in Congress is signed up to it. And basically it's a system where you send letters to your colleagues -- will you cosponsor my bill, will you sign my letter, that kind of thing. Normally if you're getting information about an upcoming briefing or an upcoming document that's going to be available to members of Congress, you would get an email. An email, a normal email would come to you, to all members of Congress saying, "Hey there's a document that's going to be available, come stop by." But no, we got it through the "Dear Colleague" system.

Rogers routed the "invitation" into Congress' spam folder in order to limit the number of members who would actually see the email. Then he went further, setting up the least convenient time for viewing.

And the only reasons we noticed is because one of my staffers is silly enough to have this spam folder and look through it and she helped find it and she alerted me, "Hey we've got this document that's going to be available tomorrow, and it's going to be available between 9 a.m. and noon." And it's available between 9 a.m. and noon on the day when members of Congress are leaving to go back to their districts.

If this sounds familiar, you'll recall that back in June, the Senate Intelligence Committee used the same tactic, scheduling a briefing with James Clapper at 2:30 PM on a Thursday afternoon, two hours after the last vote and heading into Father's Day weekend. There are no details on how Senators were notified, but the fact that only 47 of the 100 Senators attended shows that scheduling something for a Thursday afternoon is the easiest way to ensure underattendance.

The House Intelligence Committee's invitation was even more intentionally poorly timed than the Senate's June briefing. The invitation itself didn't even arrive until 2:31 PM on Thursday, a time when most Congress members would be boarding planes to head back to their home states. The viewing was set up for Friday morning, at which point the Capitol would be a ghost town.

Dear Colleague:

In response to Members’ questions during briefings on the NSA programs, the House Permanent Select Committee on Intelligence (HPSCI) is pleased to make available to Members a classified letter from the Office of the Director of National Intelligence.

Specifically, the classified document will be available to Members-only for review with a HPSCI staff member from 9:00 am to noon, tomorrow, August 2nd. If you are interested in reading the letter, please have your staff contact [aide's name] at [her phone extension] or [her email] to schedule a time to do so.

Sincerely,

Mike Rogers
Chairman

Amash went to the underadvertised document viewing and was unsurprised to find very few attendees.

The only people who showed up at that briefing were the people I talked to. Nobody else knew that that was going on. Not a single person outside of the people I talked to knew that was going on. And we had to sign a disclosure ... an anti-disclosure agreement saying we wouldn't talk to any of our colleagues about what we saw.

This is Rogers "making" documents "available." If someone really wants to disseminate information to their colleagues, they'll make an effort to find a time that works for a majority of Congress members, like Reyes did back in 2010, with his staff and others accommodating others rather than setting arbitrary timeframes. If they don't, and Rogers clearly doesn't, they'll dump a notice in the spam folder and hold a one-time viewing once most of Congress has already left for the weekend.

Filed Under: congress, justin amash, mike rogers, nsa, nsa surveillance