NSA to Congress: Our spy programs don’t work, aren’t used, or have gone wrong – now can you permanently reauthorize them?

Senators: Um, no.

spy

The NSA was unable to give a single example of how one of its most controversial spying programs has been useful in the fight against terrorism in a Congressional hearing on Wednesday morning.

The repeated refusal by NSA senior official Susan Morgan to provide any detail whatsoever about how the program - which the NSA and FBI are formally asking Congress to permanently authorize - has proved useful, left senators on the Judiciary Committee shaking their heads in disbelief.

Among those expressing their frustration were the two senators, Patrick Leahy (D-VT) and Mike Lee (R-UT), who co-sponsored the USA Freedom Act that the intelligence services are asking be reauthorized before it expires on December 15.

In response to requests from, among others, Senator Dianne Feinstein (D-CA), Lindsay Graham (R-SC), Leahy and Lee, among others, the NSA’s Morgan argued that it was only possible to give an answer to the question in a closed, classified session. The senators repeatedly rejected that position with Feinstein stating bluntly: “That’s inadequate. If you can’t give us any indication of specific value, there is no reason for us to reauthorize it.”

That wasn’t the only source of tension: both Leahy and Lee expressed their frustration with the failure of the Director of National Intelligence (DNI) to answer letters they had sent to him about why the NSA had shut down the so-called Section 215 spying program which allows the agency to gather the phone records of millions of Americans.

We've killed it. Now let's keep it alive

Back in June 2018, the NSA unexpectedly announced that it had unlawfully collected hundreds of millions of call details from American citizens. The spy agency said it was unable to separate legitimate data from unlawful data and so as a result it was deleting it all. Then, just four months later, the exact same thing happened again - but we only learnt about it in June this year, eight months later, when a document outlining the second deletion was provided to a civil rights organization as part of an ongoing legal case.

Two months before that release, the NSA announced that as a result of the repeat failures of the program, it would discontinue the mass collection of data. But, amazingly, it is still asking Congress to permanently reauthorize the program in case it proves useful in future.

The ridiculousness of the situation was not lost on the senators. “We are only a month away [from the USA Freedom Act reauthorization],” noted Leahy, “and we don’t know what caused the mass overcollection, what companies were responsible, or why NSA was not able to separate the unlawful material from the lawful material.”

He went on: “And it’s not as if Senator Lee and I have not tried to gather this information… Almost a year ago, we wrote a letter to the Director and National Intelligence and the Justice Dept - and failed to get a response. Seven months later, we wrote again, and we have yet to get a substantive response.”

Leahy then made it plain that unless Congress gets some answers “there is no reason for us to reauthorize [the program]” and he called the NSA’s request to be given the permanent right to run several of its programs just in case they become useful in future “not appropriate.”

“We are legislating in the dark,” he complained.

Same old game

The NSA has repeatedly failed to provide lawmakers with information they have requested over long periods of time, and then only provided basic information on the eve of legislative renewals, as a way of pushing through reauthorization of controversial programs.

Most notably, the DNI spent over a year telling Senator Ron Wyden (D-OR) that it was working on a way to provide him with metrics on how many US citizens were included in a different spying database. It then declared, just a month before the program’s reauthorization, that it hadn’t been possible to do so, causing Wyden to vent his fury.

Adding insult to injury, it later emerged that that response was a lie and the intelligence services did in fact possess the very information that Wyden was asking for.

In response to today’s hearing in the Judiciary Committee, Wyden and Senator Martin Heinrich (D-NM) have called for a similar hearing in their own Senate Intelligence Committee.

“The public deserves information about this controversial surveillance law which has impacted hundreds of millions of law-abiding Americans," they said. "It is particularly important that whichever committee marks up reauthorization legislation first hold an open hearing so that its members can elicit public information that will form the basis for their votes.”

But back to today’s hearing: the NSA played the same game again. Deputy assistant attorney general of the DoJ, Brad Wiegmann, told the hearing that he apologized that they had not been able to respond to the letters from Leahy and Lee over what went wrong with its spy program, but the delay was due to the Administration developing a position on the issue; something that was only achieved in August.

Drafty in here

To cries of exasperation and disbelief, Wiegmann then told the senators that he had hoped to bring a response with him to the hearing but that it was still in draft form. They would “have it this week,” he promised.

That response led chair Lindsay Graham to comment “well, that’s progress” but Senator Lee remained incensed: “I think we may need monthly hearings - to stay in contact on this,” he threatened. Sensing that he wasn’t being taken seriously, he immediately followed up: “I’m dead serious. We are not messing around here. I don’t appreciate a one-year delay.”

Despite the fireworks and clearly stated frustrations of the Senators, it’s not clear that Congress will act to cancel spying provisions within the USA Freedom Act. The intelligence services have proved extremely adept at playing the political game and in this case they are seeking a permanent reauthorization of all its programs, meaning they would never have to face Congress again with the risk of losing their powers.

fbi

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Wiegmann may have accidentally given away the intelligence services negotiating position, however, when - under repeat fire from the Senators - he suggested that the program could again be reauthorized for a few years, rather than permanently.

He explained the rationale for permanent reauthorization as follows: “Since it has been reauthorized so many times [four], at some point Congress should be confident enough that it can approve them permanently.”

He then, somewhat implausibly, said that he “didn’t know” of any privacy concerns that would stop that permanent reauthorization.

As for why spying programs that have never been used, have failed to work properly, or remain highly controversial should be reauthorized at all, the representatives of the NSA, DoJ and FBI all had the same answer: they are valuable “tools in our toolbox” and both the nature of terrorist organizations and technology continues to change over time, meaning that the intelligence agencies need the “agility” to evolve with them.

Based on events today in the Senate Judiciary Committee’s hearing room, that argument is not going to cut it. But then, as the NSA knows only too well, what senators say in public and what they end up doing when confronted with a decision are often not entirely consistent. ®

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