Among the questions raised by the yesterday’s FISC story is this: what has the executive branch said to members of Congress, regarding the collection of Verizon customers’ telephony metadata under Section 215?
Key legislators’ comments offer some clues–and hint at thorough notification by executive branch personnel. Senators Dianne Feinstein and Saxby Chambliss—the Chairman and Ranking Member of the Senate Intelligence Committee, respectively—publicly affirmed the legality and longstanding, programmatic nature of the collection authorized by the leaked FISC order. And, in a joint statement, the pair said further that “the executive branch’s use of this authority has been briefed extensively to the Senate and House Intelligence and Judiciary Committees, and detailed information has been made available to all members of Congress prior to each congressional reauthorization[.]”
Others in Congress seem to disagree, including Congressman James Sensenbrenner, the Patriot Act’s author and a former Chairman of the House Judiciary Committee. In a letter to Attorney General Eric Holder, Sensenbrenner yesterday questioned the executive branch’s acquisition of business records pursuant to Section 215. And along the way, he critiqued DOJ testimony on the issue, which was delivered during Sensenbrenner’s Chairmanship. From his letter:
I insisted upon sunsetting this provision [ed: Section 215] in order to ensure Congress had an opportunity to reassess the impact the provision had on civil liberties. I also closely monitored and relied on testimony from the Administration about how the Act was being interpreted to ensure that abuses had not occurred. On March 9, 2011, Acting Assistant Attorney General Todd Hinnen told the Judiciary Committee:
Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records . . . On average we seek and obtain section 215 orders less than 40 times per year.
The Department’s testimony left the Committee with the impression that the Administration was using the business records sparingly and for specific materials. The recently released FISA order, however, could not have been drafted more broadly.
Note the ellipsis above—which naturally leaves out some testimony by Hinnen. With the excised portion added back in, the testimony reads as follows (emphasis supplied):
Section 215 has been used to obtain driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, and the like. It has never been used against a library to obtain circulation records. Some orders have also been used to support important and highly sensitive intelligence collection operations, on which this committee and others have been separately briefed. On average, we seek and obtain section 215 orders less than 40 times per year. Many of these are cases where FBI investigators need to obtain information that does not fall within the scope of authorities relating to national security letters and are operating in an environment that precludes the use of less secure criminal authorities.
For what it is worth, the italicized sentence certainly could encompass (and, I imagine, was meant to encompass) delicate collection of the sort described in the FISC order. I also would not expect a DOJ official like Hinnen to speak in any detail about the government’s most closely-held intelligence activities in an open session.
[Note: Emptywheel also has a post on Sensenbrenner's letter---which I only happened upon moments before posting.]