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Sent: 14 February 2006 17:13
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Subject: Policy Post 12.03: Congress Begins Deeper Investigation of NSA's
Warrantless Wiretapping Program
A Briefing On Public Policy Issues Affecting Civil Liberties Online from The
Center For Democracy and Technology
(1) Congress Begins Deeper Investigation of NSA's Warrantless Wiretapping
Program
(2) Congress Has Authority to Investigate Operational Facts of NSA Program
(3) Staff Inquiry Needed into Nature and Scope of NSA Program
(4) Discussion of Amending FISA Is Premature
--------------------------------------------------
(1) Congress Begins Deeper Investigation of NSA's Warrantless Wiretapping
Program
Last week, as key Republicans joined Democrats in expressing concerns about
warrantless domestic wiretaps, House and Senate Committees began to probe
more deeply into the National Security Agency (NSA) program.
At the beginning of the week, Attorney General Gonzales defended the
legality of the program before the Senate Judiciary Committee but refused to
answer any questions about its scope or implications.
Chairman Arlen Specter (R-PA) and three other Republicans expressed
skepticism at the Attorney General's legal arguments and consternation that
the President had not sought explicit Congressional approval of the program.
Later in the week, Gonzales and the Deputy Director of National
Intelligence, Lt. General Michael Hayden (former director of the NSA),
appeared before closed sessions of the House and Senate Intelligence
Committees.
By week's end, Rep. Heather Wilson (R-NM), chair of the House Intelligence
Subcommittee, which has oversight authority for the NSA, was calling for a
more detailed probe of the program. Until last week, the White House had
limited its briefings about the NSA program to eight senior members of
Congress -- the four members of the House and Senate leadership and the
Chairmen and Ranking Members of the House and Senate Intelligence Committees
(collectively, the "Gang of Eight").
Those Members of Congress were allowed neither to take notes nor consult
with anyone -- not even their staff -- after the briefings, putting them at
a substantial disadvantage and effectively limiting oversight of the
program.
Even with the limited information currently available, we can conclude that
the program violated FISA and that the Administration's Constitutional
arguments are questionable at best. However, before Congress can decide how
to proceed, it has to understand better the operational nature and scope of
the program. CDT is calling on Congress to exercise fully its oversight
responsibilities, to learn the basic facts about the program and then to
insist that the program be terminated or subjected to appropriate checks and
balances. While last week's hearings were a good start, they should be the
beginning, not the end, of Congress' inquiry into the NSA's warrantless
monitoring of Americans.
CDT NSA resources: http://www.cdt.org/security/nsa/briefingbook.php
Link includes:
- Attorney General Gonzales' written answers to questions posed by Sen.
Arlen Specter in advance of February 6 hearing, Feb. 3, 2006
- Testimony of Attorney General Gonzales Before the Senate Judiciary
Committee, Feb. 6, 2006
- Statement of Senate Judiciary Committee Ranking Member, Patrick Leahy
(D-VT), Feb. 6, 2006
- Transcript of Senate Judiciary Committee Hearing, Feb. 6, 2006
--------------------------------------------------
(2) Congress Has Authority To Investigate Operational Facts of NSA Program
In the 1970s, after thoroughly investigating years of intelligence agency
abuses that rose to their most egregious level during the Nixon
Administration, Congress adopted two major reforms to ensure the government
had the power it needed to defend the nation from terrorist threats, while
at the same time protecting innocent Americans from unjustified
surveillance.
One pillar of the post-Watergate reforms was the Foreign Intelligence
Surveillance Act (FISA), which created a special court from which the
government can quickly and secretly obtain a warrant to wiretap suspected
terrorists.
The second pillar was the Congressional oversight process. The Judiciary
Committees were recognized as having an interest in the constitutional
aspects of domestic surveillance. Special intelligence committees were
created in the Senate and House of Representatives, designed expressly to
oversee even the most sensitive intelligence programs on behalf of the
American people, guarding against abuses without compromising national
security.
Until the current Administration decided to bypass both the FISA court and
the Congressional oversight process, there had been broad consensus that
these reforms, while protecting civil liberties, had also strengthened, not
weakened, intelligence agencies by clarifying their authorities.
The Senate and House Intelligence Committees have the jurisdiction, the
authority, and the responsibility to conduct an inquiry into the operational
details of the NSA program. Under the National Security Act, the President
is required to ensure that the congressional Intelligence Committees are
kept "fully and currently informed" of U.S.
intelligence activities, including any "significant anticipated intelligence
activity."
Another provision of the National Security Act specifically requires that
the Director of National Intelligence and the heads of intelligence agencies
"keep the Intelligence Committees fully and currently informed of all
intelligence activities" and "furnish [them] any information or material
concerning intelligence activities, other than covert actions" that is
within their control.
The "Gang of Eight" rule that allows the President to limit notification of
"covert actions" to eight senior members of Congress specifically excludes
intelligence-gathering activities from the definition of "covert action."
Thus, despite the Administration's claim that it has "briefed" Congress, its
limited briefings to the Gang of Eight were not an adequate substitute for
the statutorily mandated congressional oversight.
Administration officials announced late last week that they would provide
information about the NSA program on a classified basis to the full
membership of the Intelligence Committees. The administration's about-face
is a welcome turn, but Intelligence Committee members must insist that the
administration give them all of the information necessary to fulfill their
constitutional and statutory responsibilities. If necessary, the Committees
should issue subpoenas.
The Judiciary Committees share jurisdiction over electronic surveillance
with the Intelligence Committees. Chairman Specter of the Senate Judiciary
Committee made it clear that his Committee would hold further hearings, and
House Judiciary Committee Chairman Jim Sensenbrenner (R-WI) sent the
Administration a detailed list of questions.
--------------------------------------------------
(3) Staff Inquiry Needed Into Nature and Scope of NSA Program
Before it determines the program's legality and before it even considers the
need for new legislation, Congress must understand the full operational
extent of the NSA program.
Practically speaking, the only way to do this is through a staff inquiry, by
the Judiciary and Intelligence Committees. Members of Congress do not have
the time to dig into the details of a program like this. Once staffers have
uncovered the facts, then Members can consider the policy issues. This is
the model that has been followed for over 30 years. Congress has proved that
it can conduct staff investigations of intelligence programs without
compromising national security. It did this when the Church Committee
thoroughly and successfully investigated the FBI's domestic surveillance
during the Cold War; it did so in laying the basis for the enactment of
FISA; and it did so in its recent investigations of intelligence failures
relating to the 9/11 attacks and Iraqi weapons of mass destruction.
Reports indicate that the NSA domestic spying effort has multiple
aspects: one that intercepts the substance of communications, another that
analyzes large amounts of communications traffic, and a third that expanded
the amount of information about "U.S. persons" disseminated to other
intelligence agencies. The media has also reported that large
telecommunications companies, including AT&T, MCI and Sprint, have given the
NSA access to their massive "gateway" facilities in the U.S., which route
voice and data transmissions from around the world.
Congress must learn, and to the extent possible, report to the public,
details including whom the NSA is targeting, how it is identifying those
targets, what information the program collects and disseminates, and most
important, whether these programs advance our national security interests
without compromising citizens' privacy.
Congress must also determine whether there are other surveillance programs
directed against targets in the United States. The Attorney General, in his
testimony before the Senate Judiciary Committee, refused to answer questions
about whether the President's legal theories are being used to justify other
programs.
--------------------------------------------------
(4) Discussion Of Amending FISA Is Premature
The Administration has suggested that FISA is outdated because it does not
fit the new technology and the terrorist threat, but it is premature to
consider amending FISA. Congress does not have sufficient understanding of
the full scope of the program (or programs) or of the ways in which changing
technology has affected government surveillance.
There has been no evidence -- only the Administration's assertions -- that
FISA is inadequate.
If anything, FISA is ill suited to the new technology because its standards
are too weak, given the reliance of so many ordinary Americans on the
Internet, its global nature, and the huge growth in the volume of
international communications traffic on the part of ordinary Americans. In
many ways, the digital revolution has augmented the power of the NSA,
placing much more information at its disposal.
The vacuum cleaner technology of the NSA is too powerful when aimed
domestically.
Moreover, FISA already allows a great deal of warrantless activity, in ways
that may no longer be appropriate. Even when limited to its proper use,
NSA's technology unintentionally collects an enormous amount of data on U.S.
persons.
Given the unprecedented amount of information Americans now transmit
electronically, the risk of intercepting and disseminating the
communications of ordinary Americans is vastly increased, requiring more
precise -- not looser -- standards, closer oversight, new mechanisms for
minimization, and limits on retention of inadvertently intercepted
communications.
Addressing these issues will require an in-depth Congressional inquiry and a
broad and informed debate, not a quick fix.
--------------------------------------------------
Detailed information about online civil liberties issues may be found at
http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/3
Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 12.3 Copyright 2006 Center for Democracy and Technology
_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts
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