The Lapses in Dragnet Notice to Congress

I’m at a great conference on national security and civil liberties. Unfortunately, speakers have repeatedly claimed that NSA fully informs Congress on its programs.

Even setting aside Dianne Feinstein’s admission that the intelligence committees exercise less oversight over programs conducted under EO 12333, there are a number of public documents that show the Executive failing to fully inform Congress:

April 27, 2005: Alberto Gonzales and Robert Mueller brief SSCI on PATRIOT Authorities in advance of reauthorization. They make no mention of the use of PR/TT to gather Internet metadata, much less the violations of Colleen Kollar-Kotelly limits on the kind of data collected during the first period of its use.

October 21, 2009: A Michael Leiter and NSA Associate Deputy Director briefing to the House Intelligence Committee pointed to the September 3, 2009 phone dragnet reauthorization as proof that NSA had regained FISC’s confidence, without mentioning further violations on September 21 and 23 — violations that NSA did not inform FISC about.

August 16, 2010: DOJ did not provide the Intelligence and Judiciary Committees with some of the pre-July 10, 2008 FISC rulings providing significant constructions of FISA pertaining to — at a minimum — Section 215 until after the first PATRIOT Reauthorization.

February 2, 2011: House Intelligence Chair Mike Rogers did not invite members of Congress to read the 2011 notice about the phone and Internet dragnets. Approximately 86 freshmen members — 65 of whom voted to reauthorize the PATRIOT Act, a sufficient number to tip the vote — had no opportunity to read that notice.

May 13, 2011: In a briefing by Robert Mueller and Valerie Caproni designed to substitute for the Executive’s notice to Congressmen about the phone and Internet dragnets, the following exchange took place.

Comment — Russ Feingold said that Section 215 authorities have been abused. How does the FBI respond to that accusation?

A — To the FBI’s knowledge, those authorities have not been abused.

While the balance of the briefing remains redacted, this seems to suggest the FBI did not brief House Republicans about the dragnet violations.

September 1, 2011: NSA did not provide notice to the House Judiciary Committee about its testing of geolocation data under Section 215 until after the reauthorization of PATRIOT Act, in spite of the fact that it had been conducting such tests throughout the 2010 and 2011 debates on the PATRIOT Act.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

7 replies
  1. Phil Perspective says:

    I saw this at the conference link:

    John Mueller — Woody Hayes Chair of National Security Studies, Mershon Center
Professor of Political Science, The Ohio State University

    What the hell is that about? Somehow, I doubt Woody left an endowment for security studies.

  2. earlofhuntingdon says:

    Just a name, without the punching, chair swinging and other abusive behavior that earned him a deserved loss of employment. Fits, somehow, with a “chair” in “national security” studies. Pity OSU isn’t more creative, just reliant on memory loss and mythology, also fitting attributes to associate with such studies.

  3. orionATL says:

    “national security law policy and practice” – that’s the name of the conference.

    what is missing from this title,

    what is wrong with the emphasis of this title,

    and, inferentially, with the conference itself.

    what is missing from the conference title –

    the words “the unites states’ constitution”.

    – coyly substituted for “constitution”, and therefore subordinating the constitution to national security, is the phrase “national security law policy and practice”.

    what is wrong with the title?

    – it emphasizes “national security” and overtly ignores any reference to the u.s. constitution, the premier, and in some cases sole, bulwark against the current movement in the u.s. toward a national security state, i.e., toward totalitarianism.

    what is wrong with the conference itself?

    – it gives pride of place to the concept “national security”.

    that phrase does not usually describe a real emergency in american’slives;

    it usually has bern employed, since the 1950’s”, to describe american politicians efforts to gain or retain power by fearmongering about american loss of life from some nefarious other, e.g., communism or al-q.

    we have faced one after another false national security crises since the 1950’s. all have cost us lives and much, much public money. in historical perspective, none have proved to have been even remotely a national security threat to americans.

    “the question of violations of the u.s. constitution by national security laws and executive rulings”.

    but what law school would have the nerve to so direct its intellectual investigation?

    a conference title for some truly coureagous law school or history department:

    “when, since the 1950’s, has the evocation by american political leaders of a putative ‘national security emergency’ been justified by historical retrospective?

    and

    “how often since the 1950’s has the constitutional been ignored or “interpreted” to support government repression in the wake of a falsely declared “national security emergency”.

  4. LeMoyne says:

    @Phil Perspective: Although there is very much to not like about Woody Hayes (including his friendship with Nixon), I suggest Wikipedia on Woody’s legacy:

    Having met Hayes at a reception following a Buckeye win over Iowa in 1957, Nixon recalled [in his eulogy], “I wanted to talk about football. Woody wanted to talk about military history. And you know Woody—we talked about military history.”

    It’s also interesting and relevant what he did in WWII (enlistee to Lt Cmdr) and how he talked to VietNam protestors even though he disagreed with them. So, it’s not a fluke that the Mershon Center has a Wayne Woodrow Hayes Chair in National Security Studies, it’s a big pile of donations in lieu of flowers per Woody’s request.

Comments are closed.