Senator Ron Wyden (D-OR) blew a fuse Wednesday morning when his years-long effort to get American intelligence services to say how many US citizens have been sucked into a foreign spying program was dismissed out of hand.
"You promised that you would provide a 'relevant metric' for the number of law-abiding Americans who are swept up in the FISA 702 searches," Wyden told director of national intelligence Daniel Coats at a hearing of the Senate Intelligence Committee this morning.
Waving his finger at Coats, Wyden continued: "This morning you went back on that promise. And you said that even putting together a statistical estimate would 'jeopardize national security.' I think that is a very, very damaging position to stake out."
Wyden was right to be furious: the intelligence agencies have been playing a game for years where they claim that the spying program authorized under Section 702 of the Foreign Intelligence Surveillance Act (FISA) only targets foreigners outside the United States, while at the exact same time using it to gather data on US citizens within the United States by applying a set of self-developed definitions and legal positions that don't stand up to even basic scrutiny.
That database on US citizens is then used by the FBI in its investigations of domestic crimes – something that is explicitly the opposite of what the law authorizes. Yet the NSA, FBI and other intelligence services continue to defend the program while at the same time claiming it doesn't really exist.
The simplest and easiest way of exposing that duplicity is to learn the size of the database – and in particular the number of US citizens within it. That is why Senator Wyden has been asking for the figure for six years now. And why the intelligence services have been doing everything in their power not to provide it.
However, with Section 702 requiring re-approval by Congress before the end of this year, Wyden's crusade has been taken up by others.
In April last year, the House Judiciary Committee sent a letter to the then-director of national intelligence, James Clapper, asking him for "a public estimate of the number of communications or transactions involving United States persons subject to Section 702 surveillance."
Clapper of course failed to provide a figure by the deadline. So pressure was added last May when the Senate's Judiciary Committee held a hearing on reauthorizing the relevant law and invited two members of the Privacy and Civil Liberties Oversight Board (PCLOB) as witnesses. They were damning about the program and directly disputed claims made by other witnesses about its nature.
The PCLOB is supposed to be the independent authority keeping tabs on the US spying program, but following their damning report in the realities of the 702 program (and related 512 program), the body was effectively dismantled. Now it exists with just one of the five board members and no executive director. Legally, it cannot carry out any work.
Following the presidential elections, Congress picked up the FISA spying program again. In February, in advance of new hearings, a large number of tech industry groups sent a letter to the heads of four key congressional committees asking for "an open debate around the reauthorization of Section 702." That letter broke down how the 702 program was being abused and suggested necessary reforms.
The following month, at a House Judiciary Committee, Congressmen pushed again for the number of US citizens caught up in the database, pointing out that they had asked a year ago for an estimate and had heard nothing.
Fact or fiction
In response to that pressure and in advance of this week's hearing, the NSA and FBI put out a "factsheet" on the program. It was supposed to serve as a backgrounder in defense of the program, but in reality only highlighted its ludicrous contradictions.
For example, it:
- Noted that the law specifically bans the gathering of information on US citizens, but went on to defend both the gathering and retention of information on US citizens.
- Claimed its procedures severely limit the amount of information gathered on individual US citizens, but claimed to be unable to provide even an estimate as to how many US citizens' records are in its database.
- Noted that it is illegal to specifically target US citizens using their personally identifiable information without a warrant, but then argued why it should be allowed to continue searching US citizens' personally identifiable information without a warrant.
It was in this document that the director of National Intelligence noted that the intelligence agencies were "working to produce a relevant metric" on the number of US citizens included in the 702 database. He used the same statement in his confirmation hearing in March when quizzed by Wyden on the issue.