THE BLOG
09/27/2013 01:42 pm ET | Updated Nov 27, 2013

The DNI Executive Review Group on Intelligence and the Senate Oversight Committee on Intelligence: Exercises in Futility?

An AP story published on The Huffington Post and in many newspapers on September 22, "Close Ties Between White House, NSA Spying Review" uncovered the sham exercise that constitutes the White House's promised review of NSA surveillance programs. A group of allegedly independent experts on intelligence communications and technologies was to scrutinize spy programs -- authorized under the U.S. Foreign Intelligence Surveillance Act and the USA Patriot Act -- to be sure they weren't violating civil liberties when collecting phone records and obtaining copies of Internet messages.

But, guess what? The DNI review panel (two of its five members are former deputy CIA director Michael Morell and Richard Clarke, former White House counterterrorism coordinator) has been operating--per the AP report--as an arm of the Office of the Director of National Intelligence, headed by Gen. James Clapper, which oversees the NSA and all other U.S. intelligence institutions! Advisers to the group work in offices on loan from the DNI. Press statements from the panel are coordinated through the DNI's press office. And the intelligence czar has exempted the panel from U.S. rules that require federal committees to conduct their meetings in ways subject to public observation.

As noted by the Associated Press, the de facto legal charter of the panel directs it to emphasize in its review whether U.S. spying programs protect national security, advance foreign policy, and are protected against the types of leaks that led to the national debate in the first place. No mention was made of the panel investigating surveillance abuses.

Here is the kicker: The final report, when it is issued, will be submitted for White House approval before the public can read it. In other words, the closed meetings will have left the public out of the loop.

Some independence! Some review!

Yet, President Obama, when announcing the formation of an independent panel back in August, said that it would "consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used."

It seems patently obvious that the U.S. intelligence community has a captive audience in the President. What sway does the DNI have over the White House? Most troubling, it is not difficult to imagine a coverup of a big scandal in the making. Who works for whom? As I have written previously, the national security state is under siege; and careers may be on the line.

Senate Reform?

The U.S. Senate potentially offers an alternative route to avoid a whitewash. As mentioned briefly in the September 24 New York Times, a bipartisan group of senators on the Judiciary Committee, led by Sens. Patrick Leahy of Vermont and Charles Grassley of Iowa, has written to the inspector general for the overall intelligence community, Charles McCullough III, requesting that he carry out a "full accounting" of how the government has been using its surveillance powers, 2010-2013. The inquiry is to focus on surveillance that affects "the privacy rights of U.S. persons [and] any improper or illegal use of various programs."

Ellen Nakashima reported in the Washington Post of September 25 ("Sen. Sen. Patrick Leahy Calls for End to NSA Bulk Phone Records Program") that the chairman of Judiciary had called for an end to the NSA "metadata" phone records collection program directed at Americans--in a speech at Georgetown University's Center on National Security and the Law the previous day. The Senator from Vermont believes that it treads too heavily on Americans' privacy rights without having proved its value as a counterterrorism tool.

Executive Resistance

Fearing independent probes, Gen. Keith Alexander, director of the NSA, has been rhetorically straining to limit the damage on the eve of Congressional hearings. As reported in the Washington Post--"NSA Chief Defends Collecting Americans' Data"--he vigorously defended his agency's collection of Americans' records for counterterrorism purposes in a speech to the Billington Cybersecurity Summit on September 25: "We did use [Section] 215," he said, referring to the USA Patriot Act provision that the government has claimed a federal court has agreed gives it the authority to collect data on practically all calls made in the United States.

Consistent with the above perspective, the AP reported on September 26--"Intelligence Chief Sidesteps Questions About Tracking Locations of Cellphone Calls"--that NSA's chief sidestepped questions from Sen. Ron Wyden (D-ORE) of the Intelligence Committee about whether the agency has ever used Americans' "cellphone signals" to collect information on their whereabouts that could allow tracking of the movements of individual callers. When asked twice by Wyden if NSA had ever collected or made plans to collect such data, Alexander answered by reading from an old letter provided to senators last year; and cited a classified version of the letter that was sent to senators:

What I don't want to do ... is put out in an unclassified forum anything that's classified.

Thus speaketh the prim head of NSA.

Senatorial Blowback

Wyden charged that the "leadership of your agencies built an intelligence-collection system that repeatedly deceived the American people. Time and time again, the American people were told one thing about domestic surveillance in public forums while government agencies did something else in private." ("U.S. Officials Dodge questions on Scope of Surveillance," Post, September 27) Sen. Mark Udall (D-COLO) is quoted as asking Alexander if the NSA wants "the phone records of all Americans." "I believe it is in the nation's best interest to put all the phone records into a lockbox that we can search when the nation needs to do it, yes," the general replied.

Before the Senate Intelligence Committee, as reported by Nakashima in the Post, he joined Gen. Clapper in claiming that leaks of documents by Edward Snowden had been "extremely damaging" to national security. Clapper:

These disclosures are threatening our ability to collect intelligence and keep our country safe ... There's no way to erase or make up for the damage that has already been done. We anticipate more as we continue our assessment

.

As Charlie Savage reports in the New York Times of September 27--"Senators Push to Preserve N.S.A. Phone Surveillance"--Clapper and Alexander have solid majority support in the Senate Intelligence Committee under chair Sen. Dianne Feinstein. But she is hardly a model for legislative oversight, often pontificating like an official of the executive branch. The committee seems to be moving toward swift passage of a bill that would "change but preserve" the once-secret NSA program that keeps logs of every American's phone calls. According to the California senator, she and the top Republican on the panel, Senator Saxby Chambliss of Georgia, are drafting a bill that could be marked up as early as next week.

Ms. Feinstein is credited--in the Times--with fashioning a bill that would expand the NSA's powers to wiretap without warrants in the United States in one respect: "when it is eavesdropping on a foreigner's cellphone, and that person travels to the United States, the N.S.A. would be allowed to keep wiretapping for up to a week while it seeks court permission." That step allegedly would remove the largest number of incidents in which the NSA has deemed itself (my emphasis) to have broken rules about surveillance in the United States, as identified in a May 2012 audit leaked by Snowden.

Per Savage, the rival proposals supported by Wyden and Udall would ban the NSA from warrantless searches of Americans' information in the vast databases it collects by targeting noncitizens abroad. It would also prohibit, when terrorism is not suspected, systematic searches of the contents of Americans' international e-mails and text messages that are "about" a target rather than to or from that person. (my emphases)

When Sen. Chambliss suggested that people could die because of Snowden's disclosures, he pressed Gen. Alexander to describe the value of a more comprehensive surveillance program: In Alexander's opinion, "if we had had that prior to 9/11, we would have known about the plot."

Does anyone recall President George Bush's daily intelligence briefing warning flag in August 2001?

Existing Laws

According to press reports, in both the Times and the Post, Director Alexander continues to emphasize that Section 215 does not permit the collection of the content of Americans' communications. However, NSA still reads the e-mails and the transcripts of phone calls of Americans who are in contact with foreign targets overseas; but it does so in a program separate from the Patriot Act -- try to follow the bouncing ball of legislative and bureaucratic history -- that is authorized under the Foreign Intelligence Surveillance Act. The latter program, authorized in 2008 under Section 702 of FISA, does not require an individual warrant for each target. (Emphasis added.)

With events in Kenya and Somalia prominently in the foreground this week, Gens. Clapper and Alexander characterized both programs as vital in fighting terrorism. Alexander denounced "the media leaker"--a reference to Edward Snowden--as "an IT administrator responsible for moving data to a common Web site." (Washington Post, "NSA Chief Defends Collecting Americans' Data," speech of September 25.)

Stay tuned. Things are much worse than they seem.