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How the US Congress Lost the Plot on Secrecy, Surveillance and Accountability

Outraged by the government dragnet of our private data? Blame the politicians who gave the Obama administration a free pass

To hide his role in championing the use of Section 215 of the USA Patriot Act to collect of Americans' phone data and other "tangible things", one of the architects of that legislation, Wisconsin Congressman Jim Sensenbrenner, edited a quote in a enate intelligence committee chair Senator Dianne Feinstein, flanked by Senator Saxby Chambliss and House intelligence committee chair Mike Rogers, 6 June 2013. (Photo: J Scott Applewhite/AP)letter (pdf) to Attorney General Eric Holder Thursday to suggest he never knew how the FBI and NSA were using the authority his legislation had granted:

"Section 215 has been used to obtain driver's license records, hotel records, car rental records, apartment leasing records, credit card records, and the like."

Sensenbrenner quoted from Acting Assistant Attorney General Todd Hinnen's testimony (pdf) before the House Judiciary Committee in 2011:

"It has never been used against a library to obtain circulation records … On average, we seek and obtain section 215 orders less than 40 times per year."

Sensenbrenner used this passage to claim DOJ had incorrectly told the committee it was using the provision "sparingly".

The letter was a response to the Guardian's report that FBI and NSA had used of Section 215 to collect data from all of Verizon's customers for a three-month period starting in April. Senate intelligence committee chair Dianne Feinstein made it clear on Thursday that collection program has been used for seven years, presumably back to the first Patriot Act extension in 2006, suggesting the program has been used for years to collect the phone data on all Americans.

What Sensenbrenner didn't reveal in his letter to the attorney general is that his ellipsis in that passage replaced a sentence from Hinnen's testimony making clear that Section 215 authorized secret collection:

"Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed."

So it happened that – as Sensenbrenner reminded Holder in the letter – the author of the Patriot Act tried to distance himself from the language he had pushed to retain in 2005 that has been used ever since to authorize dragnet collection of Americans' call records – all the while denying that the DOJ has briefed Congress on this secret collection.

And while Feinstein, her counterpart on the Senate Intelligence Committee Saxby Chambliss, and Senate majority leader Harry Reid, all suggested people should just "calm down" because "it's been going on for some seven years," numerous other members of Congress attempted to play dumb about the surveillance program which they had approved.

Speaker of the House John Boehner, like Sensenbrenner, tried to dodge responsibility for the authorizations he had supported:

"The tools were given to the administration, and it's the administration's responsibility to explain how these tools are used."

What all this professed ignorance hides are the sustained warnings about the scope of the program from those who raised concerns about its surveillance authorization.

The first time the Patriot Act, with the new Section 215 collection, got renewed in 2009, then Senator Russ Feingold warned that the public didn't know everything it needed to about Section 215:

"[B]efore we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders."

Even as Feingold was issuing that warning in the Senate, House judiciary committee members John Conyers, Jerrold Nadler, and Bobby Scott asked the DOJ to "work to make publicly available additional basic information on the use of Section 215, so that Congress can more openly and thoroughly consider the future of this authority", even citing testimony from Todd Hinnen talking about the secret collection.

Then, in 2011, Senators Ron Wyden and Mark Udall tried to amend the Patriot Act (pdf) to require the attorney general to describe how it was secretly using the law. "It is essential for the American public to have access to enough information to determine how government officials are interpreting the law," their amendment, which didn't even receive a vote, read, "so that voters can ratify or reject decisions that elected officials make on their behalf." They also tried, as both the House judiciary committee and members of the Senate judiciary committee did in 2009, to limit the "relevant to" language that Sensenbrenner championed in 2005 and 2006.

Finally, Senator Jeff Merkley tried to amend the FISA Amendments Act to force the release of Fisa court opinions. He made it clear this, too, pertained to the use of Section 215. "One could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing," he warned about Section 215's "relevance" standard.

Yet, all of these efforts to limit or reveal the activities of Section 215 have failed – largely as a result of efforts by congressional leaders like Feinstein, Reid, Boehner, and even Sensenbrenner. And now people like Sensenbrenner are trying to pretend they haven't had four years of notice about how broadly the Obama administration had applied this standard – which, as Sensenbrenner surely knows, largely reflects how broadly the Bush administration conducted the same surveillance without legal sanction.

When they've (rarely) gotten a vote, efforts to rein in this dragnet collection has been voted down by representatives like Feinstein and Sensenbrenner. More often, congressional leadership has avoided such votes, suggesting they might prove more embarrassment than is already being felt.

Ultimately, however, Representative Sensenbrenner managed to claim ignorance and Senators Feinstein and Reid managed to insist this has gone on for years because of the studied secrecy they themselves have engaged in. As a small dissenting group of members of Congress have made clear, had these things been made more transparent, it might have been a lot more difficult to support this dragnet.

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