Senate Judiciary Committee members echoed the skepticism, if not the rancor, of their House counterparts, questioning broad domestic surveillance early Wednesday. But the biggest NSA news came outside the hearing room.
The Guardian unveiled a powerful Internet monitoring program called XKEYSCORE, attempting to validate Edward Snowden’s controversial claim that he could wiretap the president. Senators did not allude to that program, which technically remains classified. However, the hearing did touch on documents about metadata collection, including a Verizon business records order, released just before it began.
The new disclosures came from the office of Director of National Intelligence James Clapper, an early target of criticism. Chairman Patrick Leahy (D-Vt.) said Clapper recently “acknowledged that he provided false testimony,” the closest a senior senator has come to calling him a liar. Leahy also called for mass collection of Americans’ phone records to stop if its value is not demonstrated, saying he remains unconvinced. Ranking Member Grassley likewise pointed to Clapper’s “inaccurate statements,” calling for cooperation and transparency from the Obama administration, touting the importance of Congress’s oversight function.
Continuing a trend from recent hearings, official government witnesses repeated their established talking points about domestic surveillance. Deputy Attorney General James Cole’s opening statement was indistinguishable from the one he gave to the House Judiciary panel. He reassured Grassley that “name, address, location, Social Security number is not collected under the 215 program at all.” Leahy wanted to know if anyone had been “fired” or “admonished” for allowing Snowden to leak so many documents. “How soon will you know who screwed up?” he asked NSA Deputy Director John Inglis. A few weeks or months, Inglis replied, explaining that the investigation is ongoing. He also reasserted that 54 terror plots had been foiled by phone metadata in conjunction with PRISM Internet monitoring.
In comments to Grassley, ODNI General Counsel Robert Litt rehashed an analogy of PATRIOT Act Section 215 “relevance” to the concept of “discovery” grand jury subpoenas, saying the idea that investigators may collect a broad set of data to access a narrower, relevant one within it is well-established. However, when challenged to define how such a standard allows for the mass collection of telephone metadata, he referred generally to 34 Foreign Intelligence Surveillance Court opinions that upheld it, all of which are classified by definition. Former FISA Court judge James Carr offered a counterpoint in the second panel, repeating the call of his recent New York Times op-ed for a more balanced, conventionally adversarial judicial process.