Earlier this month, Sunlight’s Advisory Committee on Transparency hosted a panel on surveillance and transparency, featuring a set of participants with wide-ranging viewpoints. At “Who Watches the Watchers,” we had the chance to hear from these experts on topics ranging from the USA FREEDOM Act to the recent Second Circuit court ruling to parallel construction.
You can check out the full panel on video, thanks to C-SPAN, but the following excerpts stuck out as interesting, disturbing or illuminating.
1. Intelligence agencies believe it’s perfectly acceptable to admit evidence against Americans in court without telling defendants or judges that it came from secret bulk surveillance.
Parallel construction is one place where the surveillance rubber hits the road. Broadly speaking, it’s the practice of concealing the root of evidence to be admitted in court by creating a separate path to it. Think of it this way: The NSA discovers you’re doing something illegal (for instance, by tracking the records of every call you make and will make). It feeds that information to law enforcement, but requires those agents to swear they won’t tell anyone how they came across the information. The agents then develop a new route to that information, for instance a “random” stop, or another separate, less secret method of surveillance. In court, they never notify the defendant or the judge about the tip, and instead rely on the parallel tract they’ve developed.
Who would ever know? Except for some conspicuous slip-ups, this is the kind of thing that would never be revealed, shy of a whistleblower or oversight more effective than one can reasonably trust currently occurs.
While privacy infringement – especially when conducted in secret – is troublesome to say the least, until now, we didn’t know what intelligence agencies believed they could do with all of the information they collect.
I posed this question to Bob Litt, the general counsel at the Office of the Director of National Intelligence, and watched as he and Patrick Toomey of the ACLU debated the practice. A gross violation of defendants’ rights or a standard, accepted convention? Check out the clip below and decide for yourself. Whichever way you fall, know that the ODNI doesn’t seem to think there’s any problem with it at all (Bob compares it to law governing confidential informants).
2. The Court of Appeals decision for the Second Circuit — holding bulk collection unlawful — isn’t binding on the FISA Courts.
Maybe this is already well known, but that was news to me. The interplay of federal circuits and circuit splits are always interesting – the Court of Appeals for the Second Circuit, for instance, may be persuasive in other circuits, but it isn’t binding (and such a circuit split is generally how cases end up in front of the Supreme Court). But how do such opinions affect the FISA Court and the FISA Court of Review?
Apparently, not much. (Unless it actually issues an injunction, which the Second Circuit hasn’t.)
3. Does 215 potentially authorize an Internet dragnet? “Probably not.”
In short, Litt said that there was no Internet metadata program operating under Section 215, specifically pointing to a previous program that began around the same time as the bulk phone metadata program but was authorized under different authorities.
Marcy Wheeler was the first person to catch this – she noticed that Sen. Richard Burr, R-N.C., said on the Senate floor that Section 215 not only provided for collection of all phone records, but also all IP addresses. “Probably” isn’t the most reliable term, but it’s better than no answer at all.
4. Members of Congress, especially in the House, have virtually no staff capable of reviewing surveillance practices.
It is difficult for staff in the House to receive the proper clearances, particularly those that work in individual member offices. This makes it more difficult for members of Congress, especially those who don’t sit on the Intelligence Committee, to perform effective oversight and learn about intelligence programs. If members of Congress aren’t themselves sitting in on a briefing, and they aren’t on committee, they probably have no access at all.
5. Records keeping, staff turnover and more combine to create a serious “Memento” problem.
Several of the panelists touched upon the difficulties involved in maintaining institutional knowledge at the intelligence committees when staff and membership turnover is high, information sharing is often compartmentalized and record keeping often errs on the side of the paper shredder. Mieke Eoyang referred to a “Memento” problem, where the intelligence community had shared relevant information with Congress, but — because of the problems outlined above — no one in Congress remembers it. Even Litt noted that the House Permanent Select Committee on Intelligence is woefully under-resourced, which means that even for members on committee, offices struggle to conduct effective oversight.
6. Everyone thinks that the House Intelligence Committee is terribly under-resourced.
It was a little tough to pull one clip for this headline because it came up at various points throughout the event. Suffice to say, everyone involved — including Bob Litt — agreed that the intelligence committees need (and deserve) more robust resources to do their jobs as well as they can. And if we are ever going to bring the intelligence community back out of the PR doghouse, it will only be once Americans are confident that congressional oversight is working. If the relevant committees really did allow surveillance to go on as we now know — which intelligence agencies have argued for years — then those agencies have been done a grave injustice (not that it forgives their own decisions).
7. There is no comprehensive index of the government’s surveillance programs.
Pat Eddington, a former Hill staffer, CIA analyst and current Cato analyst, asked Bob Litt if the intelligence community Inspector General — or any other government body — had compiled a comprehensive index of intelligence authorities and programs. The answer? A confident no.
8. Bob Litt: Director Clapper didn’t lie about bulk collection, he just forgot about the telephone metadata dragnet.
9. Is the era of bulk collection over?
Another headline that came out of the panel was from the Wall Street Journal, saying, “Mr. Litt said it would take a ‘brave intelligence official who would say we’re going to recreate a bulk collection program.'”
It’s not entirely clear that Bob Litt was speaking broadly or specifically to the telephone metadata program (which is indeed on its deathbed, at least in the sense of government holding American records). Further, balancing between “bulk” and “bulky” provides more flexibility to the statement. The former technically applies to completely indiscriminate collection, while the latter applies to extremely broad collection based on some kind of discriminator, such as every communication using the word “bomb” (which I suspect most people would still consider “bulk”).
Accordingly, I suspect the era of bulk collection doesn’t yet need an epitaph. However, I don’t mind being wrong.