“Simply put, the NSA dismantled the program because it was a serious failure,” Nadler said. “It is not a bad thing that the NSA identified a problem, told us about it, and tried to fix it.” But he called it “baffling” that the Trump administration is asking Congress to reauthorize that effort after shutting it down.
The law authorizing this data collection is due to expire in December. It is a scaled-down version of a program that came under intense public criticism amid disclosures in 2013 by former NSA contractor Edward Snowden. Under the earlier version of the program, the NSA collected Americans’ records in bulk from phone companies — who called whom, when and for how long, but not call content. A 2015 law made the phone companies keep those records and provide the agency with logs of numbers linked to suspected terrorists.
Senior officials from the NSA, FBI and Justice Department testified in support of the program’s renewal, saying it could be helpful someday in the fight against terrorism.
“You never know what you’re going to confront in the future,” said Susan Morgan of the NSA. “As an intelligence professional, I want to have every tool available in my toolbox.”
Nadler, however, said he wanted more than “a vague promise that it might come in handy one day in the future somehow.”
Lawmakers seemed more willing to reauthorize two other surveillance provisions due to expire in December — one, which officials say has never been used by the FBI, for conducting surveillance of individuals who may be planning terrorism but are not affiliated with foreign terrorist groups, and another for “roving” wiretaps designed to follow terrorism suspects who quickly switch phones and email accounts.
In August, then-Director of National Intelligence Daniel Coats urged Congress to reauthorize permanently all three powers, including the “Section 215” authority that enables not only the call-records program, but also the collection of other types of business records potentially relevant to national security investigations.
Though lawmakers may want to permanently delete the call-records authority specifically, there is likely to be support for renewing the underlying Section 215 authority, given officials’ insistence on its utility. With it, they said, the government can obtain hotel, car rental and driver’s license records — all items permitted in an ordinary criminal investigation through a grand jury subpoena.
But civil libertarians are pressing Congress to take the opportunity to strengthen privacy protections in surveillance law.
The American Civil Liberties Union wants lawmakers not only to kill the call-records authority, but also to limit the types of records that can be obtained under Section 215, bar the government from targeting individuals on the basis of their First Amendment activity and ban warrantless searches of Americans’ information under other surveillance authorities. Without such reforms, Congress should let the laws lapse, the ACLU said in a letter this week.
At Wednesday’s hearing, Republicans criticized officials not for their general handling of surveillance programs, but for their decisions in one specific case: the FBI probe into Russia’s election interference and whether any associates of President Trump’s 2016 campaign were involved with those efforts.
Republican lawmakers pressed FBI Deputy Assistant Director Michael Orlando to defend the decision to obtain a Foreign Intelligence Surveillance Court warrant to monitor the electronic communications of former Trump campaign adviser Carter Page. Orlando repeatedly declined to discuss the case, which is the subject of a long-running review by the Justice Department’s inspector general.
“It appears to me that faulty information was used to investigate Trump campaign officials by partisan agents,” said Rep. Steve Chabot (R-Ohio).
Another prominent Republican critic of the FBI, Rep. Jim Jordan (R-Ohio), complained that Democrats do not want to hear from the inspector general, Michael Horowitz, because he has found serious fault with former FBI director James B. Comey’s handling of the Russia investigation.
By coincidence, Horowitz also appeared before Congress on Wednesday at a separate hearing. He said a draft of his report on the surveillance questions surrounding the Trump campaign investigation was with Attorney General William P. Barr, who will review the classified matters in it and help decide what parts to make public.
Horowitz told the House Oversight and Reform Committee that he wanted to make as much of the report public as possible but cautioned that after the classification review, writing an unclassified version would take time.
He declined to say whether there would be any criminal referrals out of the review.