WASHINGTON (CN) - Stoking the Senate Judiciary Committee’s frustrations on Tuesday, intelligence experts had few answers to direct questions on reauthorizing a surveillance tool.
Set to expire on Dec. 31, Section 702 of the Foreign Intelligence Surveillance Act authorizes the U.S. government to spy on foreign targets who are “reasonably believed” to be outside of the United States.
Having spent years clamoring for hard numbers on how many Americans are surveilled incidentally under the tool, members of the committee have become adept at calling out cagey non-answers by the intelligence community at previous authorization hearings.
Sen. Lindsay Graham, R-S.C., teed off a particularly intense exchange Tuesday with Bradley Brooker, acting general counsel for the Office of the Director of National Intelligence.
“Am I entitled as a U.S. senator to know whether or not the intelligence community monitored a conversation I had with a foreign leader abroad,” Graham asked. “And if someone made a request, could they unmask me?”
Brooker told Graham that his staff’s request were too broad and required a review of “every news clip” featuring the senator.
Flustered, Graham said he didn’t need that, just a specific answer about the report.
“It’s like months ago [that I made the request],” Graham said. “So am I ever going to get it in my lifetime? And if you aren’t going to give it to me, tell me why.”
Brooker started to answer Graham but the senator interrupted him several times before finally asking Brooker if there was a legal reason why he could not provide an answer.
[blockquote author="Sen. Dick Durbin, D-Ill." style="1"]We have given you more and more authority, and all we’re asking is, how carefully are you using it?”[/blockquote]
Brooker said there was not, adding that if Graham was unmasked in the surveillance process, members of the intelligence community would inform congressional leadership and top intelligence officials through what is known as the Gates notification process.
Gates requires an agency to seek approval from the Office of the Director of National Intelligence before any unmasking occurs.
When other members of the committee began demanding that Grassley hand over the floor after his time expired, Committee Chairman Chuck Grassley shouted into his microphone and banged his gavel.
“I want you to proceed until you get an answer,” said Grassley, R-Iowa. “I mean, if there’s anything in this country that people are entitled to, it’s an answer to their question!”
Grassley’s intensity prompted Graham to coyly respond: “I’m violently agreeing with you.”
Turning to the panel, Graham laughed and advised Brooker: “If I were you, I’d answer my question, because he is mad,”
Sen. Dick Durbin, D.-Ill. later noted the irony of Graham’s request and asked the panel to consider the conundrum Congress faces: if a U.S. senator can’t get simple information about his own potential privacy violations, how can everyday citizens be expected to trust that federal agencies aren’t abusing powers granted to them under 702?
“We have given you more and more authority, and all we’re asking is, how carefully are you using it?” Durbin asked.
Members of the committee remain largely divided over whether or not Section 702 should be permanently extended or sunset every five years with congressional approval.
“Society changes, the world changes, and technology and communications change,” Sen. Dianne Feinstein, D.-Calif., said. “A sunset allows us to review and revise such as may be necessary due to technology changes that happen at such a rapid pace.”
Sen. Amy Klobuchar, D.-Minn., agreed, saying that without a sunset clause Congress loses all leverage to make any real changes.
Though largely grounded in the tool’s ability to foil potential terrorist plots abroad, more recent developments on the Beltway have also shaped the GOP’s re-energized push to see the tool implemented indefinitely.
“Would you agree with me that anyone who leaked a conversation between [former National Security Adviser] Michael Flynn and a Russian ambassador did damage to Flynn?” Graham asked.
Flynn was forced to resign from his post in February after anonymous sources provided the media with information revealing that Flynn misrepresented the content of his communications with Russian ambassador Sergey Kislyak, apparently lying to Vice President Mike Pence.
“Any leak of information causes damage,” Brooker said.
Stuart Evans, deputy assistant attorney general for intelligence at the Justice Department, attempted to smooth over some of the day’s rancor, saying that the vast number of noncompliance incidents with 702 – or the incidental sweeping up of private citizen’s communications – were all “self-reported by federal agencies.”
“The Foreign Intelligence Surveillance Court regularly checks it work,” Evans said. “As we’ve seen from declassified court opinions, the appliance of 702 is exacting and thorough … error rates are consistently low. Less than 1 percent. And this isn’t just our own conclusion. The Director of National Intelligence’s Oversight Board confirmed these findings and said they were impressed with the rigor of the government’s efforts to make sure that it collects only what it is meant to and only what it can target legally.”
Elizabeth Goitein, co-director of the national-security program at New York University’s Brennan Center for Justice, echoed the trust concerns posed by Sen. Durbin.
“This is about Americans’ reasonable expectation of privacy granted in the Fourth Amendment," Goitein said. “Whether or not the search bears fruit is irrelevant.”
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