Senator Dan Coats (R-IN) took to the pages of the Wall Street Journal urging his fellow congressmen to stop politicizing the NSA surveillance leaks – at least until they have all of the facts. Coats, a member of the Senate Intelligence Committee, emphasized the strict oversight that the programs are subject to and the overall legality of the practices in place.
“These programs are legal, constitutional and used only under the strict oversight of all three branches of the government, including a highly scrutinized judicial process,” said Coats. “I can attest that few issues garner more of our attention than the oversight of these programs.”
Senator Coats also noted the “trust deficit” that Americans have towards their government due to the slew of scandals circulating in the media and sought to reaffirm that protections built into the system that protect the civil liberties of American citizens.
“For the record, the government is not and cannot indiscriminately listen in on any American’s phone calls. It is not targeting the emails of innocent Americans. It is not indiscriminately collecting the content of their conversations and it is not tracking the location of innocent Americans through cell towers or their cell phones.”
The “trust deficit” is a growing problem, as Senator Coats pointed out. Unfortunately for him, his op-ed made it a little bit larger.
The Guardian released the FISA court rules that allow the NSA to use the data of American citizens without a warrant. The two documents – Procedures used by the NSA to target non-US persons and Procedures used by NSA to minimize data collected from US persons – contradict the Senator’s claims.
“Top secret documents submitted to the court that oversees surveillance by US intelligence agencies show the judges have signed off on broad orders which allow the NSA to make use of information “inadvertently” collected from domestic US communications without a warrant,” the Guardian reported.
A key loop-hole is determining the location of a targeted person.
“In the absence of specific information regarding whether a target is a United States person,” the documents state “a person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.”
We also learned from the Guardian that the broad orders and question of location put a majority of the authority in surveillance directly in the hands of the analysts involved with the case, and not the FISA court. If it is learned that a subject is located in the US, the analysts can still inspect emails and messages and can listen to phone calls to verify the person’s location – without a warrant.
During his testimony at a recent House Intelligence Committee hearing, Deputy Attorney General James Cole confirmed that probable cause – in some cases – is determined by the analyst and not the FISA court. He explained the strict guidelines for targeting an American for surveillance, but noted “we do not have to get separate court approval for each query.” Again, no warrants.
As a member of the Senate Intelligence Committee, Senator Coats has NSA oversight responsibilities and knows about these rules. Why would he decide to not disclose these broad rules and special cases?
Speaking of oversight, how can we rely on congress to conduct their oversight duties when officials can lie directly to them without consequence? Director of National Intelligence, James Clapper, was asked at a March Senate hearing, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
“No sir,” Mr. Clapper replied. “Not wittingly.”
Later Mr. Clapper acknowledged that he gave the “least untruthful” answer possible in light of the documents released by Edward Snowden to the Guardian. This exchange raises the serious concern of whether congress is truly able to provide oversight and preserve our constitutional rights if their questions do not have to be answered in the “most truthful” way possible.
Unsatisfied with FISA rules and the effectiveness of congressional oversight, Ron Wyden (D-OR) and Mark Udall (D-CO) – colleagues of Senator Coats on the Senate Intelligence Committee – are working with members of congress to re-open the Patriot Act to restore privacy rights to the American people.
“The recent disclosures of government surveillance activities have highlighted the gap between the government’s interpretation of the PATRIOT Act and the public’s understanding,” Wyden said. “This gap has allowed the government to create secret programs that violate the civil liberties of law-abiding Americans who have absolutely no ties to terrorism or espionage.”
Senator Coats closed his op-ed with the prediction that support for the NSA programs will grow “as sensationalism and fear are replaced with fact.” But even his own colleagues – who get the same intelligence briefings he does – are appalled by the actions of the NSA and are seeking legislative remedies to the blatant violations of the 4th Amendment. Coats is clearly on the wrong side of the argument. The ACLU has concluded that the rules that supposedly protect Americans’ privacy are weak and riddled with exceptions. The Electronic Frontier Foundation has drawn the same conclusion based on the documents released by the Guardian.
Glenn Greenwald (Guardian reporter) has demonstrated that the United States government can and does listen to phone call of American citizens without a warrant. If Senator Coats truly wants to reduce the “trust deficit” he should retract his op-ed, assume that Snowden has given up the entire story to the Guardian, and revise his statements. Only once the truth is told can there be an honest debate about surveillance in America.
