The lawmaker who wrote the USA Patriot Act said Wednesday that, as it stands, the House will never renew the provisions that the Obama administration uses to collect Americans’ phone records, meaning the government’s surveillance program will be cut off some time next year.
Both Democrats and Republicans told top administration officials that they reject President Obama’s claim that the law allows the intelligence community to collect the phone numbers, time, date and duration of calls made by Americans, and they said Mr. Obama needs to change the way he is running the program if he wants to keep it intact.
Rep. F. James Sensenbrenner Jr., the Wisconsin Republican who was chief author of the Patriot Act in 2001, said Congress specifically tried to limit the law’s uses when it renewed the provisions under Section 215 of the act that allow the government to collect data from businesses without obtaining a warrant.
In that renewal Congress added in the word “relevant” to try to limit what the government was pursuing. But Mr. Sensenbrenner said the intelligence community has expanded, not limited, its data-gathering efforts after Congress tried to reel them in.
“Section 215 expires at the end of 2015 and unless you realize you’ve got a problem, that is not going to be renewed. There are not the votes in the House to renew Section 215,” he said. “It’s got to be changed and you have to change how you operate Section 215. Otherwise, in a year or a year and a half, you’re not going to have it anymore.”
Since former National Security Agency employee Edward Snowden last month leaked details of the program to capture what is called the metadata from all phone calls, the Obama administration has declassified more information and the president has said he wants the public and Congress to support the surveillance programs.
Wednesday’s hearing marked the first major debate in Congress since the program was revealed, and judging by lawmakers’ reactions, Mr. Obama does not have their backing.
“I don’t want to scream at you or yell at you, but, you know, we’ve got a lot of people across the country that would like to do that,” said Rep. J. Randy Forbes, Virginia Republican.
The administration officials who testified did little to assuage concerns. Under questioning, they acknowledged that they had the technology to do things such as track ATM transactions.
The officials also said they could track the locations of cellphones on which they’re already gathering the metadata — though they said they have promised to come back to Congress for permission if they want to do that.
Lawmakers said they should have sought permission for the existing program, and some accused the administration of trying to hide it.
“We were not trying to hide this program,” said John Litt, general counsel for the office of the director of national intelligence.
He said administration officials are trying to determine whether they can provide Congress with the secret court opinions that underpin the program, as well as reports on how the data collection is performed and how it is used.
Chain of logic
In a four-page letter to Mr. Sensenbrenner this week, Peter J. Kadzik, principal deputy assistant attorney general, laid out the administration’s chain of logic for why the program is justified. He said the government needs to collect all of the information at the front end, but they go digging through it only when they have a suspected terrorist they want to track down.
“The bulk collection of telephony metadata — i.e. the collection of a large volume and high percentage of information about unrelated communications — is therefore necessary to identify the much smaller subset of terrorist-related telephony metadata records contained within the data,” Mr. Kadzik wrote.
“It also allows NSA to make connections related to terrorist activities over time and can assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, including persons and activities in the United States,” he wrote. “Because the telephony metadata must be available in bulk to allow NSA to identify the records of terrorist communications, there are ‘reasonable grounds to believe’ that the data is relevant to an authorized investigation to protect against international terrorism, as Section 215 requires, even though most of the records in the dataset are not associated with terrorist activity.”
In Wednesday’s hearing, the administration officials said they need to store the phone information because phone companies don’t keep the data for more than 18 months, and the intelligence community realized it wanted to be able to look for links within the data going back longer than that.
Under the terms of the program, phone companies turn over the data and the government stores it for five years. But officials said they can query the data to look for specific numbers only if they have a “reasonable articulable suspicion” that someone is involved with terrorism. At that point, they can check to see what phone numbers someone has been calling and develop information from there.
The officials said they involve all three branches of government by regularly briefing some congressional committees about the program, going through rigorous review within the executive branch and seeking approval for collecting the data from the special secret Foreign Intelligence Surveillance Act court every 90 days.
But members of Congress said they would prefer to see the judges have to sign off before anyone goes digging through all of the information, rather than leaving that decision to 22 employees at the NSA.
“I wonder, why is it that these 22 people have this power? They appear to be acting like court judges,” said Rep. Judy Chu, California Democrat. “And why would they be performing the job that the FISA courts were set up to do?”