“Now, the programs that have been discussed over the last couple of days in the press are secret in the sense that they're classified, but they're not secret in the sense that, when it comes to telephone calls, every member of Congress has been briefed on this program. With respect to all these programs, the relevant intelligence committees are fully briefed on these programs.”
— President Obama, remarks to the media, June 7, 2013
Something unusual happened shortly after President Obama made the statement above about the National Security Agency’s domestic phone surveillance program, in the wake of leaks to The Guardian newspaper and The Washington Post: A fellow Democrat, Sen. Jeff Merkley of Oregon, rushed out and said the president was wrong.
“It’s not something that’s briefed outside the Intelligence Committee,” Merkley told MSNBC. “I had to get special permission to find out about the program.”
Meanwhile, another Democrat, Rep. Keith Ellison of Minnesota, also appeared to dispute the president’s statement. He said he knew “almost nothing” about the program and had double checked his e-mails to see if he had received notice of a briefing. Even then, he suggested, he would be at a disadvantage because lawmakers can only hear the briefing without the benefit of staff expertise.
“The reality is you can't bring your staff in there, so we are moving around Capitol Hill at lightning speed, nearly every member of Congress is,” he said on ABC’s “This Week.” “If you can’t get staff support, that means you’ve got to go into that room, you’ve got to sit there and pore through documents over the course of hours.”
Ellison spokesman Jeremy Slevin clarified that Ellison was referring to the PRISM program — which Obama had said was briefed just to the Intelligence Committees. Ellison is not a member of the House Intelligence Committee. “Regarding phone records, he has attended classified briefings on the Patriot Act, but the content of those briefings, including whether or not they covered the Executive Branch’s interpretation of Section 215, is classified,” Slevin said.
What’s going on here?
The Guardian newspaper last week published a court order showing that a unit of Verizon had been ordered to turn over phone metadata to the NSA over a three-month period. This appears to have been a renewal of a program that has existed for at least seven years and presumably includes other telephone companies.
“The only thing taken…is not content of a conversation, but the information that is generally on your telephone bill, which has been held not to be private personal property by the Supreme Court,” Senate Intelligence Committee Chairwoman Sen. Dianne Feinstein (D-Calif.) said on “This Week.”
We asked the White House for evidence that every lawmaker had been briefed on the telephone surveillance program. We received a copy of a 2011 letter that Feinstein and her GOP counterpart, Saxby Chambliss of Georgia, had sent to colleagues inviting every senator to view a classified report on expiring provisions, including “one of roving authority for electronic surveillance and the other on the acquisition of business records that are relevant to investigations to protect against international terrorism or espionage.”
Feinstein, who sent a similar letter in 2010, has said she does not know how many senators took advantage of the offer. We sought an explanation from Merkley about why he thought it was so difficult to learn about the telephone surveillance program, but did not get an answer.
Meanwhile, our colleague Juliet Eilperin reported that FBI Director Robert Mueller spoke about the program in the context of the Patriot Act’s 2011 reauthorization in separate briefings to the House Republican Conference and the House Democratic Caucus on May 13, 2011, and May 24, 2011, respectively. She said that lawmakers were briefed 13 times between 2009 and 2011 on Section 215.
“[HPSCI] members were fully briefed on numerous occasions,” said Susan Phalen, spokeswoman for the House Permanent Select Committee on Intelligence. “Members of the House GOP Conference were also offered classified briefings on Patriot and FISA Reauthorization. Numerous non-HPSCI members did attend these briefings.”
At the White House briefing on Monday, Press Secretary Jay Carney sidestepped questions about the president’s specific statement about “every member” being briefed.
“I can't speak to individual members,” Carney said. “The chair and ranking member of the intelligence committee have made clear that every member was advised of this and had the opportunity for briefings.”
The Pinocchio Test
President Obama may have leaned a bit forward when he asserted that “every member” of Congress was briefed on the program. We will note he was speaking extemporaneously, not from notes, but for some strange reason White House staff never like to admit the president misspoke.
Indeed, Obama’s point probably would have been stronger if he had said that lawmakers had an opportunity to learn more about the program and should have taken the time to learn as much about it as possible. There may be serious questions about how much lawmakers, without the benefit of staff expertise, can drill down into the details of such programs, but it is part of their job description.
Update: Rep. Kyrsten Sinema (D-Ariz.) tweeted in response to this column that freshman lawmakers have not yet received any briefings.
@washingtonpost House freshmen haven’t been invited to attend any briefings until today at 5 pm.— Kyrsten Sinema (@kyrstensinema) June 11, 2013
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