Documents suddenly released as senators scrutinize NSA
By STEWART M. POWELL
Hearst Newspapers | August 01,2013
With a chart listing thwarted acts of terrorism, Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vt., left, and Sen. Dianne Feinstein, D-Calif., right, chair of the Senate Intelligence Committee, question top Obama administration officials on Capitol Hill in Washington on Wednesday.
WASHINGTON — The five-page briefing document describing National Security Agency collection of ordinary Americans’ telephone calling records had been kept so secret since 2009 that elected members of the House and Senate had to accept six separate conditions just to take a look.
“It is critical that members understand the importance to national security of maintaining the secrecy of these programs,” assistant attorney general Richard Weich advised the intelligence committees in the House and Senate.
On Wednesday, Obama administration director of national intelligence James Clapper abruptly abandoned such ironclad secrecy and conditions for access “in the interest of increased transparency.”
Clapper released a congressional briefing paper from 2009, a second from 2011 and a 17-page order by the Foreign Intelligence Surveillance Court detailing requirements that NSA had to meet in order to track the calling history of a single number within billions of archived telephone calling records stored over the last five years.
The authorized disclosure came minutes before Sen. Patrick Leahy, D-Vermont, gaveled the start of the Senate Judiciary Committee’s inquiry into controversial NSA intelligence gathering that first came to light in May with unauthorized disclosures by now-fugitive NSA contract employee Edward Snowden.
Snowden, waiting in Moscow’s airport for Russian action on his request for temporary asylum, released documents showing the NSA’s bulk collection of Americans’ domestic telephone calling data and the agency’s tracking of domestic Internet communications such as email and website visits.
The Obama administration’s sudden readiness to disclose super-secret documents underscored the dramatic shift in the political landscape since the House narrowly defeated legislation that threatened to shut down NSA collection of domestic and foreign telephone numbers called by Americans.
The disclosures equally showcased the administration’s determination to keep as much of the wide- ranging communications surveillance as possible to intercept suspected terrorists’ communications.
Release of briefing documents from 2009 and 2011 also served in part to undercut congressional complaints that lawmakers had been left in the dark about the programs.
The timing of the administration’s revelations prompted skepticism by Sen. Al Franken, D-Wisconsin.
“I don’t want a situation where the government is transparent only when it’s convenient for the government,” Franken told Obama administration intelligence officials testifying before the Senate panel. “When it’s ad hoc transparency, that doesn’t engender trust.”
Senators described nearly a dozen proposals to tinker with aspects of the NSA operation or procedures used by the Foreign Intelligence Surveillance Court to act on NSA surveillance requests. Franken’s measure would target timed disclosures of selected information by requiring intelligence agencies to routinely report the number of Americans who have had their telephone data collected and reviewed by federal officials.
Sen. Richard Blumenthal, D-Connecticut, outlined proposals to broaden appointment authority for the 11 judges on the FISA court beyond Chief Justice John Roberts and to establish “a special advocate” within the FISA court to challenge NSA requests for surveillance.
“I think in appearance, if not reality, the current design of the FISA Court stacks the deck against the protection of our civil liberties and can be improved and enhanced without sacrificing either speed or security,” said Blumenthal, a former federal prosecutor and Connecticut attorney general.
Sen. Dianne Feinstein, D-California, the chair of the Senate Intelligence Committee known as an ardent supporter of intelligence agencies, said she too could see room for improvements.
“I think, based on what I know, (terrorists) will come after us,” Feinstein said. “And I think we need to prevent an attack wherever we can from happening. That doesn’t mean that we can’t make some changes.”
The sentiment was shared by Republicans, as well. The Senate panel has “tried to make sure” that every provision of the Patriot Act was “consistent with our constitutional and legal heritage,” said Sen. Jeff Sessions, R-Alabama, a former federal prosecutor for 12 years and a former state attorney general. “But we listen to the concerns that were being raised and if we made a mistake, I’m willing to change it.”
Senior officials from the Obama administration said they would be receptive, including Deputy Attorney General James Cole, Robert Litt, general counsel for the director of national intelligence, and NSA deputy director John Inglis.
“We are open to re-evaluating this program,” Litt said. “We will be looking forward to working with this committee to see whether there are changes that can be made that are consistent with preserving the essence of the program, and yet provide greater public confidence.”
As for questions over the Obama administration’s timing for releasing classified documents, officials attributed the timetable to internal deliberations.
“Did you just start thinking about that decision, like, yesterday?” Franken wondered aloud.
No, said Litt.
The administration has been “thinking about this for some time, and we’ve bee1n processing these (documents for release) as quickly as we can,” said the intelligence community’s senior attorney. “It’s a rather time-consuming inter-agency process to reach consensus on what can safely be released.”
The disclosures and testimony on Capitol Hill came as the British newspaper The Guardian published fresh revelations attributed to Snowden. The newspaper described a NSA internet surveillance program known as XKeyscore.
“The implication that NSA’s collection is arbitrary and unconstrained is false,” the agency said in response to the newspaper. The XKeyscore program is part of “NSA’s lawful foreign signals intelligence collection system.”