Holder Pledges More Surveillance Proposals to Come

Chairman Bob Goodlatte, R-Va., asked about the modified Patriot Act Section 215 order that now exists, transitioned as part of President Barack Obama’s intended changes to government surveillance. Obama last month disclosed the proposal, which would shift storage of metadata from the bulk collection from the government to the phone companies (CD March 28 p10). Goodlatte asked about the process of the recent modified Section 215 order, where the Foreign Intelligence Surveillance Court determines the reasonable, articulable suspicion of requests rather than that decision being made by the government intelligence officials directly. FISC’s process allows the government to request metadata two “hops,” or queries, away from the target, rather than three as before.

There’s “no negative impact” from the shift, Holder told Goodlatte. The change is “consistent with the president’s direction and consistent with our obligation to keep the American people safe,” he said.

"We are not finished with the work we are doing,” Holder later told ranking member John Conyers, D-Mich. Holder and Director of National Intelligence James Clapper are reviewing surveillance tools beyond the Section 215 phone surveillance and hope to come to Congress with a proposal on modifications to FISA Section 702 Internet surveillance, to ensure only non-U.S. persons are targeted and to minimize the acquisition and retention of incidentally acquired information, Holder said. He judged last month’s White House proposal as “a good step forward” but said “it can obviously made better,” with the help of Congress. “The debate we've had as a nation has been a good one,” Holder said, saying of the government going to the FISC with surveillance requests now: “It is something that it is more predicate-based than what has existed in the past."

Conyers lambasted the idea that “relevance means everything” in requesting metadata. Rep. Jerry Nadler, D-N.Y., asked whether a “single legal standard” should apply to national security letter surveillance requests and Section 215 metadata requests. No, Holder replied, distinguishing between “narrow” NSL requests and the “much wider breadth” of Section 215 requests. Rep. Zoe Lofgren, D-Calif., pressed Holder on whether Section 215 bulk collection authority extended to other records held by third parties, such as emails or financial records or Internet searches. “They're governed by the same law,” Holder said. Goodlatte has expressed concerns about the White House proposal. “It’s clear that we need to reform these programs to better protect our civil liberties and rebuild trust with the American people but many details of the President’s proposal are missing,” Goodlatte said in a statement Monday.

Rep. Jim Sensenbrenner, R-Wis., asked about allegations that Clapper lied to Congress in saying last spring that the U.S. government didn’t wittingly collect data on U.S. citizens. Sensenbrenner framed Clapper’s answer at an earlier hearing as knowingly “perjury” before Congress. Office of the Director of National Intelligence General Counsel Robert Litt has argued that Clapper’s answer was an error and not perjury (http://bit.ly/1swQTF6). “I think we all know lying to Congress is a federal offense,” Sensenbrenner said. “I'm interested in making sure everyone knows they have to tell the truth in front of Congress.” Holder said Justice takes its responsibilities to investigate perjury allegations seriously and said “appropriate actions” will be taken if necessary: “I'm not in a position to confirm what the department is investigating.”