Political Moves: How Dianne Feinstein Cut Off One Of The Few Attempts At Actual Oversight By Senate Intelligence Committee

By Mike Masnick | Techdirt | September 27, 2013

We’ve already covered how Dianne Feinstein used the Senate Intelligence Committee hearing to play games with the English language, while Senator Dan Coats used it to rant against all you stupid Americans for not trusting the NSA, but there have been some actual attempts to have the Senate Intelligence Committee perform its actual duty of oversight. Both Senators Ron Wyden and Mark Udall — who have been trying to raise these questions for years — actually had specific questions for the assembled panel, but the panel (mainly Keith Alexander) did its best to completely avoid answering the questions, then used political gamesmanship to block Wyden from asking followups.

Wyden used his question to highlight what he’s been hinting at for years, that it’s almost certain that the NSA has collected bulk data on the locations of Americans (something not yet officially revealed, and which they’ve sort of tried to deny for a while). Wyden has been asking versions of this question for a few years (and trying to pass legislation blocking this kind of thing for nearly as long). But watch how Keith Alexander never actually answers the question:

Wyden: Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won’t be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?

Gen. Keith Alexander: Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware….

Note the word games: “under Section 215.” He does not say whether they’ve used some other authority to do so. And then he’s just repeating talking points so Wyden flat out cuts him off:

Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?

Alexander: We did. We sent that — as you’re also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper’s July 25th response to this question. So what I don’t want to do, Senator, is put out in an unclassified forum anything that’s classified there so I’m reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.

Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I’ll have additional questions on the next round. Thank you, Madam Chair.

First off, Alexander’s answer shows that, contrary to the assertions of some staunch NSA defenders, it is entirely possible to answer a question by saying “there is more information in classified documents that shouldn’t be shared in an open setting.” Some have tried to excuse James Clapper’s lies to Congress by suggesting he couldn’t have said more or less what Alexander said here.

Second, note the doublespeak that Alexander is engaged in here. Even asked, again, to answer the basic question, Alexander pulls an “under this program” type of answer, suggesting (again) that American location data either has been, or is planned, to be collected in bulk. That is worrisome, and should not be classified information. Rather it should be open to public debate as to whether or not it’s appropriate.

But here’s where the political gamesmanship came in. Committee chair Dianne Feinstein gave Senators only five minutes each for their questions. It seemed like a majority of this “oversight” committee didn’t actually ask any questions, but rather, like Coats, simply filibustered angrily at the American public or press for not trusting the NSA. But when actual questions were asked, not enough time was given to get a straight answer. At the very end of the hearing, after most of the other Senators had left, Senator Wyden made a perfectly normal request: could he ask his followup questions. He noted that he just had two questions and both could be asked within an additional five-minute window. Senator Susan Collins, who had similarly filibustered during her own five minutes (focusing mainly on knocking down a complete strawman: falsely insisting that people were upset that the NSA was using Section 215 of the Patriot Act to record all phone calls, when everyone knows that it’s just about call records, not call contents), objected to Wyden’s request because she thought everything would go in order. It was pure political gamesmanship.

So instead of getting to conduct more actual oversight by having the committee ask important questions of the surveillance bosses, the panel, instead, moved on to the “second part” of the hearing, which involved two staunch non-governmental NSA defenders who basically sat down to talk about the awesomeness of being able to spy on everyone. Ben Wittes opened with a “joke” about how the NSA’s director of compliance John DeLong, mocked the level of scrutiny the NSA was under by pointing out that if he had typos in a document he’d have to reveal that to some oversight authority. Har har. This was useless. There was no reason to have them testify, and they were given a hell of a lot more time than the Senators actually asking questions.

That time could have been used to actually conduct oversight. Instead, we got nothing. Throughout the panel Senators pointed out that the American public doesn’t trust the NSA right now (though, they often blamed the public and the press for this, rather than the direct actions and statements of the NSA). If they wanted a lesson in how not to build up that trust, holding a completely toothless “oversight” hearing was a pretty good start.

After Wyden, Udall also asked some specific questions, in which the deputy Attorney General basically just repeated the FISA Court ruling saying that “relevant” has been redefined by the intelligence community to mean basically anything that the intelligence community feels is “necessary” to its investigations, and seems to think that it’s a good thing that this is a “low bar.” He completely ignores the basics of the 4th Amendment, as well as recent Supreme Court decisions on the topic.

I’ve included the video of both Wyden and Udall’s questions below, so you can see the less than 20 minutes of the two-hour session where actual serious questions were asked.