Spy powers overshadowed by Russia in Senate hearing
- By Sean D. Carberry
- Jun 07, 2017
The specter of Russian interference in U.S. elections and questions about President Donald Trump's reported attempts to derail official probes into such activity dominated a June 7 Senate Intelligence Committee hearing ostensibly convened to discuss the reauthorization of a key espionage authority that is set to expire.
In between sometimes testy exchanges, Republican senators, and a couple of Democrats, did ask witnesses about Section 702 of the Foreign Intelligence Surveillance Act.
Section 702, considered one of the "crown jewels" of the intelligence community, is set to expire at the end of 2017. The act authorizes the National Security Agency to conduct surveillance of non-U.S. persons located outside the U.S. without a warrant as long as they are viewed as intelligence targets.
FISA surveillance has been at the center of the investigation of contacts between Trump associates and Russian officials, and U.S. officials have acknowledged that Trump associates were captured under 702 surveillance of Russian targets.
Some of that information was subsequently leaked to the press, and during a House Permanent Select Committee on Intelligence hearing in March, several members outright threatened NSA Director Adm. Mike Rogers and then-FBI Director James Comey that if leakers were not caught and prosecuted, the House might not be able to reauthorize 702 before it sunsets.
Members of the Senate Intelligence Committee, however, expressed far more appreciation for 702 and near unanimous support for its renewal.
Sen. Tom Cotton (R-Ark.) has filed a bill to reauthorize Section 702 without amendment, and the bill would eliminate any sunset clause. However, other members of the committee expressed the need for additional privacy protections and transparency measures in order to reauthorize 702.
Sen. Angus King (I-Maine) said he wanted more information about how the intelligence community searches and queries data collected under 702.
"I'm concerned by the distinction between query and search, and where we run into the Fourth Amendment," he said. "It strikes me as bootstrapping to say we collected it legally under 702, and then we can go and look at these American persons. I believe that the Fourth Amendment imposes a warrant requirement in between that step, which is not present in the present process," he added.
One of the Senate's most fervent critics of 702, Sen. Ron Wyden (D-Ore.) did get into a heated exchange with Dan Coats, the director of national intelligence, when Coats stated that it is not possible to provide an estimate of the number of Americans who are incidentally swept up by 702 surveillance.
Coats said that to do so would require time and resources that are not available. Additionally, he said, that audit would violate the privacy of innocent Americans incidentally collected by 702 surveillance.
"There are a lot of Americans who share our view that security and liberty are not mutually exclusive -- we can have both. You rejected that this morning, you went back on a pledge," Wyden said.
Rogers, also a witness, stated that in cases of U.S. persons caught up in 702 collection, 90 percent are involved in monitored conversations between two foreigners. In the other 10 percent of cases, Americans are captured in direct communication with foreign targets. He added that because collections have increased in recent years, more Americans are being swept up and more are having their identities "unmasked" in the course of intelligence analysis.
During the hearing, Rogers expressed confidence in the oversight mechanisms for 702 and highlighted a recent case where the NSA decided to shut down the "about" collection process after compliance violations were discovered. After a review, the NSA decided it would not collect data where a foreign target is not a participant in a communication, but simply mentioned by other parties.
"There have been no instances of intentional violations of Section 702," Rogers said. He added that unintended error rates are less than 1 percent and that all compliance violations are reported to Congress and the FISA court.
Rogers and Coats made it clear from the outset that they would not discuss, or even confirm, any alleged conversations with the president in an unclassified hearing, but that did not stop senators from trying every angle they could to extract answers.
"I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate," said Rogers in response to a question whether he was asked by the president to intervene in the Russia investigation, and throughout the hearing he refused to go beyond that statement.
Coats said that in a closed session he would be willing to tell the committee "what I know and what I don't know."
Senators also peppered Acting FBI Director Andrew McCabe and Deputy Attorney General Rod Rosenstein with questions about the investigation into possible Russian collusion with Trump associates and the firing of FBI Director Comey. They too deflected such questions at each turn.
The hearing adjourned with no resolution of the political questions surrounding the Russia investigation, nor was there a clear sense of what is next for 702.
After the hearing, Committee Vice Chairman Sen. Mark Warner (D-Va.) told reporters he was disappointed by "selective answers" and that there are more facts to be gathered in the Russia investigation.
When asked by FCW if the hearing "moved the needle on 702," Warner said only, "Much more to come on 702."
Sean Carberry is a former FCW staff writer who focused on defense, cybersecurity and intelligence.