Yesterday, the U.S. Senate Intelligence Committee purportedly held a hearing on Section 702 of the Foreign Intelligence Surveillance Act and its efficacy. The counterterrorism provision is set to expire December 31. Members of the intelligence community were there to advocate for 702's wholesale renewal, citing its vitality in thwarting terrorism or solving crimes related to it. But 702 itself was seldom the focus of witness interrogations at the hearing.
The focus of the hearing: What interference did U.S. President Donald Trump run on Russia? Ostensibly, interference with confidential intelligence gathering could create problems for the legality of that data collection under 702, as well as undermine trust on the part of the international community that U.S. counterterrorism procedures are done according to legal process.
The 702 FISA process will undoubtedly be of interest at the Privacy Shield review this fall.
Committee Vice Chairman Sen. Mark Warner, D-Va., took the opportunity to address concerns he has over recent reports of Trump's aims to influence members of the intelligence community. For example, Warner said in written testimony, "We have seen reports that the president asked at least two of the leaders of our nation's intelligence agencies to publicly downplay the Russia investigation." That kind of political activity with intelligence agents, if true, creates real concerns about "the public's confidence in our intelligence institutions," Warner said.
That opening set the backdrop for what would be a palpably frustrating hearing, just one day before former FBI Director James Comey would testify on his relationship with Trump, that left much of the debate over Section 702 itself to be resolved at a later time.
Section 702 aims to thwart terrorism by authorizing U.S. intelligence agencies to collect information on foreign nationals located overseas. Critics of the program argue the program’s reach, in practice, is far too broad, and the government doesn't provide transparency about the data it's using and collecting, for what purposes and on whom. Under the 2008 FISA Amendments Act, the government is forbidden from collecting intelligence via Section 702 on persons “reasonably believed” to be within the U.S. or even a U.S. person outside of U.S. borders.
Director of National Intelligence Daniel Coats, National Security Agency Director Michael Rogers, Deputy Attorney General at the Department of Justice Rod Rosenstein and Acting Director of the Federal Bureau of Investigation Andrew McCabe all urged 702's reauthorization without amendment.
"Collection under 702 has produced and continues to produce intelligence vital to protecting the nation against international terrorism and other threats," Coats told the committee. What's more, he continued, is that in the 10 years since Congress enacted amendments to FISA, there have been "no instances of intentional violations of Section 702," and the statute is subject to significant oversight by all three bodies of the U.S. government.
"When we do find unintentional errors and compliance incidents, we make sure they are reported and corrected," Coats said. "This is an extraordinary record of success of the diligent men and women of the intelligence community."
For months, privacy and civil liberties advocates, as well as lawmakers, including Sen. Ron Wyden, D-Ore., have been asking the NSA for numbers regarding incidental data on American citizens swept up in 702 collection on foreign targets. At the hearing, Wyden was incredulous that Coats and Rogers still couldn't deliver the data. Coats promised, during his confirmation hearing before the Senate, that he would deliver answers, Wyden said.
"There are a lot of Americans who share our view that security and liberty are not mutually exclusive, we can have both. ... This morning you went back on a pledge." — U.S. Sen. Ron Wyden
"As recently as April you said you'd provide a relevant metric" on the data, he said. "This morning you went back on that promise ... I think that is a very, very damaging position to state ... There are a lot of Americans who share our view that security and liberty are not mutually exclusive, we can have both. ... This morning you went back on a pledge."
But Coats said he never promised that. He promised he'd work on finding answers, he said. But he couldn't. When he sat down with Rogers, he found the data was "infeasible to extract," he said. He doesn't have an exact methodology as to how a person's information could be miscollected under 702, but doing so would for sure require significant research. That he knows.
"I can't justify such a diversion of critical resources," he said, adding, "Even if I had unlimited staff to tackle this problem, I still do not believe it's possible to come up with an accurate, measurable number."
Despite various senators' brief attempts to get back to discussions on Section 702's merits and flaws, the hearing took a sharp turn when Warner turned to Russia.
Specifically, Warner wanted to hear from Rogers and Coats whether Trump had asked them to "downplay the Russian investigation?" And if so, whether that would be a typical move for a president to make if the investigation involved the president and his campaign.
Rogers said he was never asked to do anything "illegal, immoral, unethical or inappropriate."
Both Rogers and Coats, pressed for more information, stated again and again that a public hearing was not the place to reveal conversations had between members of the intelligence community and the president.
That didn't sit well with a number of senators who pushed the issue further, especially Sen. Angus King, I-Maine, who asked the witnesses, including Rosenstein and McCabe, who had been towing the same line as Rogers and Coats on why they wouldn't answer the oversight committee members' questions, why they felt they couldn't.
"What's the basis for your refusal to answer these questions today?" King asked. "What is classified about a conversation about whether you should intervene in an FBI investigation?"
Coats told King, "I do no believe it is appropriate," to which King replied, "I'm not satisfied with 'I do not believe it's appropriate.' I want to understand a legal basis. You swore that oath to tell us the truth, the whole truth and nothing but the truth."
In the end, Warner said he came out of the hearing with more questions than he walked in with, and while he appreciated the witnesses' commitment to their administration, "What we don't seem to have is the same commitment to find out whether the president of the United States tried to intervene directly with the leaders of our intelligence community. ... The president is not above the law ... I would ask each of you to take a message back to the administration. At no time should you be in a position where you to come to Congress without an answer ... the requirements of our oversight duties and your agencies demand it."
As for 702's future, Warner said in a brief press conference afterward that there's much more work to come on that.
The time for such work, however, is limited, while the December 31 sunset looms.
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