Mike Rogers’ Double Secret Invitation to Dance

I’m working on a very weedy post on the White Paper’s duplicitous presentation of what it calls support for Congress for the Section 215 dragnet.

But I’d like to compare a claim from this WaPo story on how secrecy makes it difficult for Congress to exercise oversight with a detail from the White Paper.

Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.

“If you have individual members who say they don’t have time to be on the intelligence committee, then I say get off the intelligence committee,” he said.

Ruppersberger said all members benefit from an expert staff and a push in recent years for greater bipartisanship on the panel. The issues are complex and time-consuming, he said, “but we have to learn them. We have to hold these agencies accountable, but we also have to give them the resources they need to protect our country.”

Sen. John D. Rockefeller IV (D-W.Va.), a member of the Senate Intelligence Committee who expressed anger that Congress was kept in the dark about interrogation and surveillance tactics under the George W. Bush administration, now feels that Congress has what it needs. He credits Feinstein and the Senate panel’s ranking Republican, Sen. Saxby Chambliss of Georgia, for inviting every senator into the committee offices to examine classified materials.

“The intelligence oversight committees have kicked the tires on these programs very hard, with hearings and legislation and oversight, and the programs have overwhelming bipartisan support on these committees,” a Rockefeller spokeswoman said.

At this point in the story, I started wondering why the WaPo made no mention of this Guardian report, which documented what the House Intelligence Committee’s responsiveness was really like.

Rep. [Morgan] Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for “access to the classified FISA court order(s) referenced on Meet the Press this past weekend”: a reference to my raising with host David Gregory thestill-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.

In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC “reviews and critiques” of the NSA. He stated the rationale for his request: “I took an oath to uphold the United States Constitution, and I intend to do so.”

Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read about Yahoo’s unsuccessful efforts in court to resist joining the NSA’s PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC’s ruling requiring Yahoo to participate in PRISM.

On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.

The Congressman received no response to any of his requests.

The Guardian story also reveals how the House Intelligence Committee voted against giving Alan Grayson material, and quotes Justin Amash saying he had similar difficulties getting information.

But I also wondered, since this WaPo report was clearly written in part to assess claims in the White Paper that Congressional approval has been a key part of this program, why it didn’t quote these two passages:

In December 2009, DOJ worked with the Intelligence Community to provide a classified briefing paper to the House and Senate Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata collection program. A letter accompanying the briefing paper sent to the House Intelligence Committee specifically stated that “it is important that all Members of Congress have access to information about this program” and that “making this document available to all members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215.” See Letter from Assistant Attorney General Ronald Weich to the Honorable Silvestre Reyes, Chairman, House Permanent Select Committee on Intelligence (Dec. 14, 2009). Both Intelligence Committees made this document available to all Members of Congress prior to the February 2010 reauthorization of Section 215. See Letter from Sen. Diane Feinstein and Sen. Christopher S. Bond to Colleagues (Feb. 23, 2010); Letter from Rep. Silvestre Reyes to Colleagues (Feb. 24, 2010);

[snip]

An updated version of the briefing paper, also recently released in redacted form to the public, was provided to the Senate and House Intelligence Committees again in February 2011 in connection with the reauthorization that occurred later that year. See Letter from Assistant Attorney General Ronald Weich to the Honorable Dianne Feinstein and the Honorable Saxby Chambliss, Chairman and Vice Chairman, Senate Select Committee on Intelligence (Feb. 2, 2011); Letter from Assistant Attorney General Ronald Weich to the Honorable Mike Rogers and the Honorable C.A. Dutch Ruppersberger, Chairman and Ranking Minority Member, House Permanent Select Committee on Intelligence (Feb. 2, 2011). The Senate Intelligence Committee made this updated paper available to all Senators later that month. See Letter from Sen. Diane Feinstein and Sen. Saxby Chambliss to Colleagues (Feb. 8, 2011).

They describe the two notices the Intelligence Community sent the Intelligence Committees during PATRIOT Act reauthorization describing the phone and Internet dragnets.

Ron Wyden has already shown that the notices made claims about the importance of the Internet dragnet that the IC has subsequently agreed were wrong. And I have shown that what the IC actually did is send a document after a long delay, after significant parts of the debate on the program had taken place, and at a point when the Administration was already screaming Terror! Terror! Reauthorize now!

The White Paper’s description of the 2009 distribution reveals that Dianne Feinstein and Silvestre Reyes actually sat on the documents for two months, from December until February  (making the total delay from the start of the debate five months), before they invited their colleagues to come look at them, — I guess to get further into the Terror! Terror! Reauthorize now! stage?

But the White Paper also seems to suggest — with its mention of Dianne Feinstein’s letter inviting Senators to read the 2011 notice but silence about Mike Rogers’ letter — that Rogers didn’t even tell House members about it.

The Administration keeps pointing to these Congressional notices as proof that Congress was properly informed about the dragnet. But as each new detail about the notices comes out, it becomes increasingly clear those notices were about obfuscation, not information.

Update: Justin Amash just posted this:

Less than two weeks ago, the Obama administration released previously classified documents regarding ‪#‎NSA‬’s bulk collection programs and indicated that two of these documents had been made available to all Members of Congress prior to the vote on reauthorization of the Patriot Act. I can now confirm that the House Permanent Select Committee on Intelligence did NOT, in fact, make the 2011 document available to Representatives in Congress, meaning that the large class of Representatives elected in 2010 did not receive either of the now declassified documents detailing these programs.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

11 replies
  1. lefty665 says:

    Morgan Griffith is a very pleasant surprise. He represents (and generally faithfully reflects) a conservative, fairly mountainous, mostly intensely rural and economically depressed section of far south west Virginia. The district is closer to the capitals of four other states than to Richmond.

    FWIW, It is a pretty independent area. Folks don’t like getting jerked around (do they anywhere?). Don’t know about the Repubs, but on the Dem side they don’t refer to it as the “9th District”, it is “The Fighting 9th”. While solidly Repub, there’s strong strain of unreconstructed “New Deal” Dems.

    It would be wonderful if Griffith turns into this generation’s Sam Ervin. The 9th has a long border with Carolina, and as another “just a country lawyer” he’s got the potential.

  2. Arbusto says:

    The Administration drags/stomps its feet in releasing documents, some overly redacted to Congress and allows only authorized Congress critters, not aides, to read and maybe take notes. Highly redacted documents for general, yet restricted reading are made available for perusal of interested Congress critters, though few take advantage of this limited opportunity. Ossified yet bloviating committee heads such as Feinstein and Chambliss operate on the principle hear no evil, see no evil, speak no evil regarding the intelligence community. Indeed most of Congress is content with not knowing what they don’t know, nor do they want to know.

  3. P J Evans says:

    Rogers said “very few members” take advantage of his invitations to receive quarterly staff briefings on counterterrorism operations, and others skipped briefings on the NSA bulk surveillance.

    Let me guess: the briefings were scheduled for times when the invitees had other meetings already planned, or for times that were extremely inconvenient for everyone (except Rogers and his BFFs).

  4. lefty665 says:

    @Arbusto: @!#$%^&*() Chambliss is the slimy SOB that got into the Senate by running ads accusing triple amputee Vietnam vet Max Cleland of sympathizing with Saddam and Bin-Laden. That election also seems to be an early example of Repub electronic voting fraud and was a pilot for Ohio in ’04.

    Seems appropriate that he’s fronting for Obama now.

  5. lefty665 says:

    From Griffith’s Friday 8/9 press release:

    Congressman Morgan Griffith (R-VA) issued the following statement regarding President Obama’s statement today on improving oversight of the NSA’s surveillance activities:

    “I look forward to seeing the FISA Court opinions and the reasoning of the court that the President indicated the Administration will release. While I understand they may need to protect names and other personal information, I hope they do not redact vital legal reasoning as I do not want to see a white-washed, Reader’s Digest condensed version of the court’s thought process on allowing the government to collect and store every American’s phone records.”

    From his 8/5 newsletter:

    “The NSA and You

    Since the story broke of the massive National Security Agency (NSA) surveillance programs collecting the phone records of all Americans, some have stood up in defense of these programs, insisting that Members of Congress have broad oversight over their implementation. However, I have tried for the past six weeks to read the Foreign Intelligence Surveillance Court (FISA court) opinions that have been discussed in the press. At the time of the writing of this column, I have not been able to get access to those opinions because it takes a majority vote of those few Members of Congress who serve on the Select Intelligence Committee. This dilemma was recently reported in the British media by reporter Glenn Greenwald, and other outlets.

    I believe a broad “general warrant” violates the Fourth Amendment and, in order to do my job as your Congressman, I want to know the Court’s reasoning. We can both protect our civil liberties and protect our society, but I cannot look for that balance if I do not know the Court’s reasoning. I will continue to pursue my job of upholding the Constitution, but ask that you keep in mind when you hear people say “Congress has oversight” that, in reality, we currently have a Secret agency applying to get your personal information from a Secret court overseen by a committee that meets in Secret, and the Secret court’s opinions are being denied even to Members of Congress.”

    http://morgangriffith.house.gov/

  6. What Constitution? says:

    Hayden on TV this morning, arguing that anyone who reins in surveillance will have to explain themselves after “the next Terra attack on US soil”. This is why “congressional oversight” has an uphill battle to avoid becoming an even sillier notion than “military intelligence”. The Haydens, Alexanders and Clappers of the world cut their teeth in public relations and lobbying as part of the crowd who thought Goldwater’s “Atomic cloud and daisy” ad was brilliant, and the Feinsteins of the world make their fortunes arming that hysteria.

    Finding a way to assess not only the constitutionality of the statutory structures of the surveillance state, but also the operational manipulations of the text of those structures — by people who hold an ingrained belief that their personal assessments of danger are exempt from the Constitution and the Bill of Rights — is going to be the only way out of where we are short of blind acquiescence. And anyone who says we could have expected meaningfully to engage in such a process in America without the kick start afforded by Edward Snowden’s actions is just plain stupid.

  7. orionATL says:

    @lefty665:

    i’d say “independent” is the right word.

    the 9th district includes coal miners and their union,

    as well as blacksburg, with va tech’s substantially progressive faculty and student body.

    dem rick boucher represented this district for 20+ years before being defeated by griffith.

  8. lefty665 says:

    @orionATL: “Independent” as in not taking any sh*t or asking for anything. Politically it’s a different story…

    Union busting and rank and file resentment at Dem opposition to coal in recent years have loosened party ties among miners. The crash of south side manufacturing that was built on textiles and furniture have left the district with the highest unemployment in the state. VA Tech is a small bubble in the district. Also, I’m not sure exactly how progressive a lot of those engineers and aggies are.

    Votes for recent Dem statewide victories for BO and US Senate have come from the I-95/I-64 east metropolitan corridor of Northern Virginia, Richmond and Norfolk. It is a long, long way from there to Big Stone Gap in the 9th.

    Virginia’s Congressional delegation went from 6-5 Dem to 8-3 Repub in the 2010 wipe out. That was foreshadowed by the 2009 Repub sweep of the executive branch and hugely increased numbers in the General Assembly. They’ve got a 2:1 majority in the House of Delegates. Redistricting after the census helped cement those ratios in place, and the Senate Dems voluntarily redistricted themselves right out of the majority (go figure) in ’12.

    As in most states, there are very few competitive districts. For example, Griffith unseated Boucher with 51% of the vote in 2010, and won in ’12 with 61% after redistricting.

    I feel like Conyers teaming up with Amash by touting Griffith, but the leadership of both parties is hopeless. All voted against that bill, and Griffith is standing up. Politics does indeed make strange bedfellows. I’ll take what I can get if working with him will help restore the Constitution. It sure as hell is not going to come from BO, Biden, Reid, Pelosi, McConnell, Boehner, Cantor, et al. It will not come from Hillary in ’16 either.

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