Lawmakers Say Lack of Candor on Surveillance Weakens Oversight

By Peter Wallsten, The Washington Post

11 July 13

awmakers tasked with overseeing national security policy say a pattern of misleading testimony by senior Obama administration officials has weakened Congress's ability to rein in government surveillance.

Members of Congress say officials have either denied the existence of a broad program that collects data on millions of Americans or, more commonly, made statements that left some lawmakers with the impression that the government was conducting only narrow, targeted surveillance operations.

The most recent example came on March 12, when James R. Clapper, director of national intelligence, told the Senate Intelligence Committee that the government was not collecting information about millions of Americans. He later acknowledged that the statement was "erroneous" and apologized, citing a misunderstanding.

On three occasions since 2009, top Justice Department officials said the government's ability to collect business records in terrorism cases is generally similar to that of law enforcement officials during a grand jury investigation. That comparison, some lawmakers now say, signaled to them that data was being gathered on a case-by-case basis, rather than the records of millions of Americans' daily communications being vacuumed up in bulk.

In addition, two Democratic members of the Senate Intelligence Committee say that even in top-secret briefings, officials "significantly exaggerated" the effectiveness of at least one program that collected data on Americans' e-mail usage.

The administration's claims are being reexamined in light of disclosures by National Security Agency contractor Edward Snowden, reported by The Washington Post and Britain's Guardian newspaper, of broad government surveillance of Americans' Internet and phone use authorized under secret interpretations of law.

At least two Republican lawmakers have called for the removal of Clapper, who denied the widespread surveillance of Americans while under questioning by Sen. Ron Wyden (D-Ore.) and issued his apology after the surveillance programs became public two months later.

A letter to Clapper sent two weeks ago from 26 senators from both parties complained about a series of statements from senior officials that "had the effect of misleading the public" and that will "undermine trust in government more broadly."

Some Democrats and civil libertarians have expressed disappointment in what they say is a pattern of excessive secrecy from President Obama. He had pledged to run a more transparent administration than his predecessor, George W. Bush, who signed off on the NSA's controversial warrantless wiretapping program and, with the authorization of the Foreign Intelligence Surveillance Court, launched the bulk data-collection program that has continued.

"The national security state has grown so that any administration is now not upfront with Congress," said Rep. Jerrold Nadler (D-N.Y.), a senior member of the House Judiciary Committee. "It's an imbalance that's grown in our government, and one that we have to cleanse."

Administration officials say they have been as transparent as they could be in disclosing information about sensitive classified programs. All House and Senate members were invited to two classified briefings in 2010 and 2011 at which the programs were discussed, officials said.

Defenders of the surveillance programs in Congress, including Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) and Rep. Mike Rogers (R-Mich.), chairman of the House intelligence panel, have said the programs were fully explained. Senate Majority Leader Harry M. Reid (D-Nev.) pointed to "many, many meetings" where surveillance was discussed and said members had "every opportunity to be aware of these programs."

But some lawmakers say they feel that many of the administration's public statements - often couched in terms that offered assurances of the government's respect for civil liberties and privacy - seemed designed to mislead Americans and avoid congressional scrutiny.

Wyden said that a number of administration statements have made it "impossible for the public or Congress to have a genuinely informed debate" about government surveillance. The Oregon senator, whose membership on the Senate Intelligence Committee gives him access to the classified court rulings authorizing broad surveillance, has tried in recent years to force a public discussion of what he has called "secret law."

"These statements gave the public a false impression of how these authorities were actually being interpreted," Wyden said. "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."

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 M. Hinnen and David S. 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 officials cited data showing the number of surveillance orders that had been issued under the law, and both offered a caution, as Hinnen said in 2009, that, "as many members are aware," a portion of the orders "were used to support important and highly sensitive intelligence collections." 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."

Senior lawmakers have also cited the grand jury analogy, including Feinstein, who said in 2011 that the law "provides the government the same authority in national security investigations to obtain physical records that exist in an ordinary criminal case through a grand jury subpoena."

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 under the administration's broad standard.

"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 H. Holder Jr. that the Justice Department's description "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. Some lawmakers, warning of government abuse, tried unsuccessfully in 2005 to tighten the standard.

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. Members are not permitted to discuss information disclosed in classified briefings.

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

Referring to public testimony from officials, Sensenbrenner added: "How can we do good oversight if we don't get truthful and non-misleading testimony?"

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. After that disclosure, Wyden and Udall took the unusual step of releasing a statement describing classified interactions with intelligence officials. 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."

The senators said that their experience demonstrated that intelligence agencies' assessments "are not always accurate." The senators added that their exchanges with officials about the e-mail program "led us to be skeptical of claims about the value of the bulk phone records collection program in particular," a reference to administration arguments that the ongoing surveillance efforts have been crucial in thwarting terror plots.

"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.

Wyden's March question to Clapper was part of a broader effort on the senator's part to use carefully worded public statements and questions to draw attention to the existence of classified programs - and the administration's lack of transparency - without revealing secret information in the process.

Clapper's statement prompted some lawmakers to allege what Rep. Justin Amash (R-Mich.) called a "double standard" in which a top official could deliver false testimony without fear of penalty.

"If the administration has a policy to lie to Congress about classified materials in unclassified hearings, then you have to ask yourself what value the hearings have and whether or not anyone else is doing it," said Rep. Mick Mulvaney (R-S.C.).

Some are calling for a major overhaul of the current oversight system, including the intelligence committees and the surveillance court, which were created in the late 1970s amid growing concern about U.S. spy practices following Watergate, the Vietnam War and revelations about CIA efforts to overthrow foreign governments.

Congress "tried to make agencies which have to operate in secret accountable nevertheless to the law," said former vice president Walter F. Mondale, who as a senator was a member of the Church Committee, which led the efforts to overhaul the system.

Now, Mondale said, "that system has totally collapsed." He said Clapper's willingness to mislead the public during Senate testimony "is what happens when there's no accountability. . . . What is the consequence of fibbing to the American people?"