Congress is Still Naked

By Benjamin Wittes, Jane Chong
Thursday, September 19, 2013, 12:03 AM

Our piece last night summarizing the just-released FISC opinion on Section 215 bulk metadata collection unleashed a storm of protest that caught us a little by surprise. In particular, Marcy Wheeler (aka emptywheel) went medieval on our repetition of FISC Judge Claire Eagan’s suggestion that a 2011 report the administration sent to Congress on bulk metadata collection had been disseminated broadly to members. We wrote:

Prior to the May 2011 congressional votes on the reauthorization, [Judge Eagan] reports, Congress received a report on the bulk collection program, which “provided extensive and detailed information to the Committees regarding the nature and scope of this Court’s approval of the implementation of Section 215 concerning bulk telephone metadata.” The report specifically asked that all members of Congress have access to information about the program. “It is clear . . . that the Report would be made available to all members of Congress and that HPSCI, SSCI, and Executive Branch staff would also be made available to answer any questions from Members of Congress,” Judge Eagan writes. “In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court’s Orders."

The Estimable Ms. Wheel, in response, tweeted up a storm of outrage.

Let’s give Ms. Wheel her due, for in a very limited sense, she has a point: the specific document which the Executive Branch sent over in 2011 asking that it be shared with all members of Congress was apparently not shared with all members of Congress. Judge Eagan probably wouldn’t have written her opinion quite as she did had she understood this, and we---writing quickly---probably should have taken note of her error. The Executive Branch, for its part, probably should have protected her from this error by making it clear that the House Intelligence Committee did not, in fact, disseminate the document, as it had been requested to do.

In a larger sense, however, the Estimable Ms. Wheel’s point is completely without merit---at least if her point is that Congress and its members did not, in fact, have access to information about bulk metadata collection when they voted both in 2010 and 2011 to reauthorize the relevant provision of the Patriot Act.

To put the matter bluntly, any member who didn’t know what was going on, didn’t want to know.

There are really two distinct issues at play here. The first is whether the intelligence community kept the House and Senate intelligence committees apprised of the program, as the law requires. The second is whether other members of the legislature, who are not members of the intelligence committees but nonetheless had to vote on the reauthorization, were given relevant information.

As to the first issue, there really is no question: Both committees were kept fully apprised, as they have both made clear. At the time the matter first leaked, Senators Dianne Feinstein and Saxby Chambliss, chair and vice-chair of the Senate Intelligence Committee, for example, issued a statement saying that “[t]he 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 of this law.” Representatives Mike Rogers and Dutch Ruppersberger of the House Intelligence Committee, likewise released a statement expressing support for the program and saying that “the Committee routinely reviews all FISA activities.”

So the question is really limited to whether non-committee members were kept informed in advance of their votes. This is, notably, not a requirement of law. So the question is whether the administration went above and beyond the requirements of the law out of respect for the gravity of what it was asking the legislature to do.

At least in advance of the 2010 reauthorization vote, the answer to this question is also unambiguous. In December 2009, the executive branch sent a detailed briefing paper to the House and Senate Intelligence Committees. And Senators Feinstein and Kit Bond wrote a “Dear Colleague” letter inviting all of their colleagues---not just those on the committee---to review the document:

Members of the Select Committee on Intelligence have previously requested that  the Executive Branch permit each Member of Congress access to information on the nature and significance of intelligence authority on which they are asked to vote. In response to these requests, the Attorney General and the Director of National Intelligence have provided a classified paper to the House and Senate Intelligence Committees on important intelligence collection made possible by authority that is subject to the approaching sunset, and asked for our assistance in making it available, in a secure setting, directly and personally to any interested Member.

We would like to invite each Member of the Senate to read this classified paper in the Intelligence Committee's offices in 211 Hart Senate Office Building. The Attorney General and DNI have offered to make Department of Justice and Intelligence Community personnel available to meet with any Member who has questions. We will be pleased to make members of our staff available for the same purpose.

On the House side, Rep. Alcee Hastings, a Member of the intelligence committee, made the following statement on the House floor in February 2010:

Mr. Speaker, I rise to inform Members that the Intelligence Committee has received a classified document from the Department of Justice that is related to the PATRIOT Act authorities currently set to expire at the end of the month.

The House may consider a 1-year extension of the PATRIOT Act today so the Intelligence Committee will be making this document available for Member review in the committee offices located in HVC-304. Staff from the Intelligence and Judiciary Committees, as well as personnel from the Justice Department and with the Office of the Director of National Intelligence, will be available to answer any questions that Members may have.  Members who want to review the document should call the Intelligence Committee to schedule an appointment. (156 Cong. Rec. H838, Feb. 25, 2010)

Similarly, there is no question at all that all senators had access to the 2011 briefing paper. Another “Dear Colleague” letter informed members that “At the request of our Committee, the Attorney General and DNI have now provided an updated classified report for review by Members in connection with this year's February 28, 2011 sunset. As was requested last year, they have asked that any interested Member review this report in a secure setting.”

In other words, in the worst case scenario, the intelligence committees were kept fully informed, both houses of Congress received classified briefing papers for all members to see in advance of the 2010 vote and both arranged for all-member access, and both houses received such a paper again in 2011---with one arranging for all-member access and one neglecting to do so.

Ms. Wheel makes a big deal about this because in the intervening year, the House had seen a lot of turnover, and a bunch of freshman Republicans therefore did not get the chance to see the report.

But here’s the thing: not sharing the specific document is not the same thing as not sharing information. And there’s every reason to think that, notwithstanding Chairman Rogers’s apparent failure to send the 2011 briefing papers to all members of the House, the House Intelligence Committee shared information about the program with members in the run-up to the vote. The committee has said in a statement that “Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered." Indeed, the Obama administration provided members of Congress or their staff 13 briefings on telephony metadata surveillance from 2009 on---nine of which took place in 2011. As Politico lists:

  • Feb. 14, 2011: Senate All Senators were offered the opportunity discuss Sec.215 of the Patriot Act in the VPOTUS office off of Senate Floor, Director of National Intelligence James Clapper, FBI Director Robert Mueller, Alexander

  • Feb. 28, 2011: SJC/SSCI Briefing Patriot Act reauthorization (Classified)

  • Feb. 28, 2011: HJC Briefing Patriot Act reauthorization (Classified)

  • March 9, 2011: HJC Hearing Patriot Act reauthorization (Unclassified), Hinnen

  • March 15, 2011: Meeting Durbin Patriot Act amendment (Classified)

  • March 17, 2011: HPSCI Hearing Patriot Act reauthorization, Hinnen, FBI's Sean Joyce, Alexander

  • March 30, 2011: HJC Hearing Patriot Act Reauthorization (Unclassified), Hinnen

  • May 13, 2011: House Rep Conf Patriot Act Reauthorization, Mueller

  • May 24, 2011: House Dem Caucus Patriot Act Reauthorization, Mueller

We don’t know the full range of what was discussed in those briefings. One disadvantage to oral briefings, as opposed to briefing papers, is that there’s always room for dispute over how fulsome the briefings were. But it is clear that House members who did not receive the 2011 briefing paper---and were not around for the version that was shared the previous year---were offered alternative means for learning about the programs detailed in those papers.

Members of the House claim to have been blindsided by revelations of bulk metadata collection and have complained about these briefings. But all signs suggest that their ignorance was largely of their own making. For example, self-proclaimed PATRIOT Act architect Rep. Jim Sensenbrenner (R-Wis.), among the most prominent critics of NSA surveillance in the wake of the disclosures, did not attend any of the classified briefings on the government’s use of Section 215, MSNBC recently reported.

And there are reasons to suspect that the briefings may have been more fulsome than members well skilled in butt-covering may choose to remember. For one thing, the administration was pretty candid in public settings about Section 215.

On September 22, 2009, in a House Judiciary Subcommittee hearing on the reauthorization of key provisions of the PATRIOT Act, Todd Hinnen, then Deputy Assistant Attorney General for law and policy in DOJ’s National Security Division, confirmed that a “sensitive collection program” was being conducted under the provision.

The business records provision [Section 215] allows the government to obtain any tangible thing it demonstrates to the FISA court is relevant to a counterterrorism or counterintelligence investigation . . . It also supports an important, sensitive collection program about which many members of the subcommittee or their staffs have been briefed.

Later, in March 2011, when testifying before the House Judiciary on the executive’s use of Section 215 (during Sensenbrenner’s chairmanship), Hinnen expressly stated, “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.”

It is telling that Sensenbrenner could not be troubled to describe this testimony accurately. As both Wells and the Estimable Ms. Wheel herself have described, in a letter to the Attorney General this year, Sensenbrenner simply cropped this statement out of Hinnen’s testimony and then complained that Hinnen’s “testimony left the Committee with the impression that the Administration was using the business records sparingly and for specific materials.”

There’s one other reason to believe the administration briefed members in a reasonable fashion: The administration wrote the briefing paper and transmitted it---four times over two years to two different houses of Congress---intending that it be shown widely to members. So we know beyond any shadow of a doubt that the administration wanted members to have certain detailed information about the program. We also know that there were a lot of briefings by that administration concerning this program to those same members in the same time frame as the administration wanted those members to read that briefing paper.

Hmmmm. Wonder what they could have been talking about in those briefings….

Ms. Wheel insists that the 65 freshman members of the House who were not provided the 2011 briefing might have swung the 250-153 vote for FISA reauthorization. She’s almost certainly wrong. On July 24, 2013, well after the public revelations of Section 215 bulk metadata collection hit the press and the butt-covering had begun, the House had the chance for a do-over. It voted on the Amash-Conyers amendment to halt NSA’s “indiscriminate” collection of telephony metadata. The House declined on a 217-to-205 vote to adopt it.

To put the matter simply, while Ms. Wheel’s specific point about the 2011 briefing paper is correct, the importance she attaches to the point is wildly off. The administration went way beyond what the law requires in terms of keeping Congress informed of its activity. It endeavored to make sure individual members knew something about the highly sensitive programs they were voting on. And the committees facilitated access to information for members, many of whom did not avail themselves of the opportunity. As we said yesterday, Congress is naked. Judge Eagan may have erred in implying that members all had access to the 2011 briefing paper, but she’s not wrong in her larger insistence that Congress---and its members---knew what 215 was when it reauthorized it.