Thursday, July 18, 2013

Officials disrespect House Judiciary Committee

"My first question to you is why would it not have made sense given the magnitude of this program -- I'm frankly surprised, it has remained secret for the several years that it has.  Why not simply have told the American people that we're engaging in this type of activity in terms of gathering the information?" Committee Chair is Bob Goodlatte asked in yesterday's House Judiciary Committee and none of the witnesses could/would provide a reasonable answer -- most likely because there is none other than admission would have led to outrage.

A point Ranking Member John Conyers would make.  The hearing was on the spying and the FISA court.   The first panel was made up of DoJ's James Cole, NSA's John C. Inglis, Office of Director of National Intelligence's Robert S. Litt and the FBI's Stephanie Douglas.  The second panel was Steptoe & Johnson, LLP's Stewart Baker, the ACLU's Jameel Jaffer and CNSS' Kate Martin.  We covered it in yesterday's snapshot, Kat covered it in "FISA rulings," Wally covered it in "Proof that we should be thanking Ed Snowden (Wally)" and Ava covered it in "House Judiciary Committee hearing."  Going through some of the e-mails, I'm seeing a desire for more coverage and a complaint that media outlets haven't covered it as much as some e-mailers feel they should.  Feel they should?

When I cover a hearing, I'm covering from my notes and what stood out to me.  I may speak to a reporter who was at the hearing (or more than one) or a friend may call and say 'we're emphasizing' but that's all I know about the media coverage -- what I'm told.  I don't have time to cover Iraq and other things and also go through the media coverage -- nor would I want to because then I'd be influenced by what everyone was running with.  Many times, our coverage has been better because we didn't run with the pack.  (Which is why we were, for over two years, the only ones who noted that Eric Shinseki knew, within a month of becoming VA Secretary, that in the fall of 2009, many veterans would not be getting GI Bill checks for college on time and would instead be waiting -- a detail he neglected to tell Congress or the American people.)  If we're trying to be like everyone else, we're part of an echo chamber and, worse, we're a pale copy of others.  That's why I don't read the coverage of a hearing I'm going to cover in the snapshot before I dictate the snapshot.  (And after the snapshot, I rarely have time to go backwards and look at the coverage.)

Looking at coverage now, I see major dailies did cover it but some published after the snapshot went up so some community members and visitors to this site may have stopped looking at that point.

Let's note an exchange from the hearing.

Ranking Member John Conyers:  If only relevant conversations can be secured under Section 215 of the PATRIOT Act, then why on earth would we find now that we are collecting the names of everybody in the United States of America who made any calls for the last 6 years or more?

Stephanie Douglas:  Sir, we're not collecting names.  215 only collects phone numbers, the time and date of the phone call and the duration of the phone call.

Ranking Member John Conyers:  Well how do you consider that to be relevant to anything if there is only collecting the names.  I mean, look, if this is an innocent pastime we just do to keep busy or for some other reason why on earth would be collecting just the numbers of everybody in the United States of America for at least six years?

Stephanie Douglas:  I can speak to the uhm applications against investigations and, in this case for 216, it would be specific to counterterrorism investigations, uhm, that information enables us to, uh, search against connections to other, uh, if there's a communication between a US-based phone number and a phone number that is overseas related to terrorism. And I know that Mr. Inglis explained to you the reasonable articula -- articulable suspicion standard by which we have to search against those phone numbers.

Ranking Member John Conyers: Well here-here we're faced with the fundamental problem in this hearing.  We're not questioning access, we're talking about the collection in the first instance. In the first instance when you collect the phone numbers of everybody in the United States for over six years, there wasn't anything relevant in those conversations.  Now you have them.  What I've been getting out of all of this is that they may -- this access may become valuable, Mr. Ranking Member, and so that's why we do it this way. But I maintain that the Fourth Amendment to be free from unreasonable search and seizure to mean that this mega data collected in such a super aggregated fashion can amount to a Fourth Amendment violation before you do anything else.  You've already violated the law, as far as I am concerned.  And that is, in my view, the problem.  And of course to further document the first question that the Chairman of this Committee asked -- is why didn't we just tell everybody about it -- is because the American people would be totally outraged -- as they are getting now as they become familiar with this -- that every phone number that they've ever called is already a matter of record.  And we skip over whether the collection was a Fourth Amendment violation, we just say that the access proved, in one case or two, that it was very important and that's why we did it this way.

Ava noted the disrespect shown the Committee by the witnesses on the first panel.  She wrote about how the Committee members were talked down to and she's correct.  The witnesses were not respectful and they behaved as if they owned the House.

In the House (as in the Senate), during rounds of questioning, each member of the Committee is limited to a set time.  (It's five minutes in the House.)  Conyers' time had expired and he wrapped up -- or thought he had when he was interrupted.

Ranking Member John Conyers: This is unsustainable, it's outrageous and must be stopped immediately.  

John Inglis:  Sir, if I may compliment the answer Ms. Douglas gave, uh, with respect to the question of relevance, of course it must be legally relevant and it must therefore have operational relevance.  I'd like to address the operational relevance and then defer to my colleagues.

Ranking Member John Conyers:  Well you don't -- Wait a minute.  We're handling this discussion.  I, uh, I asked her.  Maybe somebody else can do it.  But my time has expired.  And I appreciate you're volunteering to help out here but it's clear to me that we have a very serious violation of the law in which the Judiciary Committee deliberately put in the issue of relevance.  And now you're going to help me out and defer to somebody else?

John Inglis:  No, sir, I meant to actually provide additional information. I'd be happy to take the question for the record if time is not allowing that.

Ranking Member John Conyers: Well in all fairness -- 

Committee Chair Bob Goodlatte: Without exception, the gentleman is recognized for an additional minute to allow another member of the panel to answer the question if he so chooses.

Ranking Member John Conyers:  No, I don't so choose.  I'm satisfied exactly with what I've gotten from the witness I asked the question to.

 The first panel came in thinking they would control the hearing and they certainly (and repeatedly) tried.  It was very disrespectful.  You are not there to ask questions, you are there to answer them.  Some leeway might be shown to private citizens on this aspect of it but government officials?  No.  You are paid by the American taxpayers and when you go before the people's representatives, you close your mouth unless you're asked a question.  You do not control the hearing, the people's representatives do.

In terms of media coverage,  Ali Watkins (McClatchy Newspapers) reports:

Rep. Jerrold Nadler, D-N.Y., challenged Cole’s defense of the program’s constitutionality, and he said the secrecy in which the court functioned negated the validity of its review.
“The fact that a secret court unaccountable to public knowledge of what it’s doing . . . may join you in misusing or abusing the statutes is of no comfort whatsoever,” Nadler said. “So to tell me you go to the FISA court is irrelevant.”
Scrutiny of the court has grown on Capitol Hill since Snowden’s revelations. Although many lawmakers have defended the court’s oversight, steps are being taken to change its formalities. The latest is from a senior member of the House Intelligence Committee, Adam Schiff, D-Calif., who introduced a bill Wednesday that would require presidential appointment and Senate approval of judges on the court.
Despite dogged questions on the opacity of NSA’s surveillance, officials tried to explain why the general nature of the programs needed to remain classified, and they defended decisions to keep the veil of secrecy in place. Lawmakers, however, pushed for greater openness, saying an operation as massive as the NSA’s cellphone sweep couldn’t have stayed secret forever.

Read more here:

Sari Horwitz and William Branigin (Washington Post) report:

Rep. F. James Sensenbrenner Jr. (R-Wis.) — who sponsored the USA Patriot Act, which ostensibly authorized the collection — warned that the House might not renew Section 215 of the act, a key provision that gives the government its authority.
“You’ve got to change how you operate 215 . . . or you’re not going to have it anymore,” Sensenbrenner said.
The sharp and sometimes angry questioning stood in stark contrast to the tone of hearings on the surveillance programs by congressional intelligence committees in recent weeks.

And James Risen (New York Times) reports:

“The government is stockpiling sensitive personal data on a grand scale,” said Representative Ted Deutch, Democrat of Florida. “Intelligence officers, contractors and personnel only need a rubber-stamp warrant from the FISA court to then learn virtually everything there is to know about an American citizen,” he said, referring to the Foreign Intelligence Surveillance Act.
While administration officials defended the surveillance during the hearing, several lawmakers said that the data collection was unsustainable, and that Congress would move to either revoke the legislative authorization for the bulk collection now or at least refuse to renew it when it expires in 2015. Mr. [James] Sensenbrenner interrupted James Cole, a deputy attorney general, to say, “Unless you realize you’ve got a problem, that is not going to be renewed.”
Wednesday’s hearing was part of a counteroffensive emerging against the National Security Agency’s domestic surveillance since the scope of the spying operations was exposed by Edward J. Snowden, a former N.S.A. contractor.

That's a national chain (McClatchy) and two major daily newspapers. Pete Yost (AP) covered it as well.  I'm sure there are many others but that's four strong reports to refer to.  I thought Deutch was worth emphasizing and that he would be overlooked so we included him in the snapshot yesterday.  I thought Nadler would be everyone's focus.  I don't have time to look for network coverage but Conyers was supposed to be featured in at least one network's report so I touched on him in the snapshot but didn't emphasize him.

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