Conyers Condemns Government’s ‘Nationwide Dragnet’
Several House lawmakers condemned the government’s monitoring of telephone and online communications and asked FBI Director Robert Mueller to justify the NSA’s broad surveillance techniques, at a House Judiciary Committee hearing Thursday. Their comments came a week after the release of classified documents by former Booz Allen Hamilton contractor Edward Snowden that revealed how the National Security Agency is secretly collecting phone metadata and user data from online services (CD June 10 p5). Mueller testified that the government’s surveillance programs are necessary to thwart terrorist attacks against the U.S. and could have prevented the Sept. 11, 2001, attacks on New York City and Washington, D.C.
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House Judiciary Committee Ranking Member John Conyers, D-Mich., said the government’s broad surveillance of American’s private communications “exceeds the authority the Congress provided both in letter and in spirit.” Conyers said federal intelligence officials had used Section 215 of the USA Patriot Act to “engage in nationwide dragnet of telecommunications records.” Section 215 of the Act permits the government to get court orders to collect “tangible things” when the FBI certifies they're relevant to a government investigation. Such activities are “inconsistent with the requirements of the Patriot Act and violate the fundamental privacy of law abiding citizens,” Conyers told Mueller.
Conyers and Rep. Justin Amash, R-Mich., plan to introduce legislation Friday that aims to “adjust the over breadth and impenetrability of these surveillance programs,” Conyers said. “It is my hope that over the coming weeks the members of this Judiciary Committee can come together to conduct meaningful oversight of these programs,” he said. “We need to pass relevant and credible legislation just as we did on an unanimous basis after September 11th.”
Mueller asserted the legality and constitutionality of the administration’s surveillance programs and told lawmakers that the programs could have identified and potentially prevented the 9/11 attacks if they had been in place prior to 2001. Congress has been briefed about the programs, the administration’s actions have been approved by the Foreign Intelligence Surveillance Court (FISC) and the programs have been “conducted consistent with the Constitution and the laws of the United States,” Mueller said. “The program is set up for a very limited purpose for a very limited objective and that is to identify individuals in the United States who are using a telephone for terrorist activities,” he said.
The need for such a “critical” program was identified by the 9/11 Commission, said Mueller. The 9/11 Commission indicated that investigating 9/11 bomber Khalid al-Mihdhar prior to the attacks “could have yielded evidence of connections to other participants in the 9/11 plot. The simple fact of [his] detention could have derailed the plan -- in any case the opportunity was not there. If we had had this program that opportunity would have been there,” Mueller told lawmakers. Conyers responded that he was “not persuaded that it makes it OK to collect every call.”
Snowden’s decision to leak an order by FISC that gave the NSA authority to collect phone metadata from millions of Verizon subscribers has “caused significant harm to our nation and our safety,” said Mueller. “Let nobody be misled in this -- this hurts national security,” he said. “The issue is how do you balance that against privacy -- I understand that. … But all I can say is there is a cost to be paid.”
Rep. Jerold Nadler, D-N.J., said the “dragnet subpoena for every telephone record certainly makes a mockery of the relevance standard of Section 215” of the Patriot Act. Nadler asked Mueller whether the government can acquire the content of an individual’s phone calls if the information gathered on their communications data appears suspicious. Mueller said government officials would have to get “at least” a national security letter to acquire the content: “All you have is a telephone number, you do not have subscriber information. … If you wanted to do more you would have to get a particularized order from the FISA court directed at that particular phone for that particular individual,” he said. Nadler said he “heard precisely the opposite” at a classified congressional briefing with intelligence officials on Tuesday. “We heard precisely that you could get specific information from that telephone simply based on an analyst deciding that you didn’t need a new warrant -- in other words what you just said is incorrect,” Nadler told Mueller.
Several members of the panel suggested that modernization of the Electronic Communications Privacy Act (ECPA) could address some of the privacy concerns related to government surveillance. Mueller said he agreed that the 27-year-old law is “outdated -- it does need review.” However, he urged lawmakers not to raise the standards “too high” so as to prevent law enforcement agencies from identifying terrorists. “I would caution against raising standards for obtaining basic non-Fourth Amendment information because you eliminate much of the data that provides predication for further investigation,” Mueller said.