On Trees Falling Silently in Oversight Forests: Three Reflections on Yesterday’s HPSCI Hearing

Although it’s been overtaken by subsequent events, I thought I’d post some reflections on yesterday’s rare open hearing before the House Permanent Select Committee on Intelligence (HPSCI), at which I was one of the witnesses [see here for archived video]. The title of the hearing was “Potential Changes to the Foreign Intelligence Surveillance Act (FISA).” But for most of the three-and-a-half-hour session, you would have been hard-pressed to guess that changing FISA was the actual thrust of the discussion. Instead, as I explain in the post that follows, the hearing featured a mix of distractions, softballs, and, most significantly, sustained disengagement from the central questions facing Congress: Whether FISA should be fixed, and, if so, how?

I. Distractions Abound: On Europe, the Patriotic NSA, and Snowden

It’s not surprising, of course, that a recurring theme throughout the first panel–featuring four government witnesses including DNI Clapper, NSA Director Gen. Alexander, Deputy Attorney General, and NSA Deputy Director Inglis–involved the recent revelations concerning the scope of our surveillance activities as directed against European leaders (see Ryan’s post on the subject). But other than a rather testy exchange between Rep. Schiff and Chairman Rogers concerning whether the full committee had been made specifically aware of the spying on Chancellor Merkel (a pretty big question, in my view, which Ryan’s post sidesteps), the discussions of Merkelgate were largely devoid of any substance beyond the obvious (but repeatedly reiterated) point that foreign intelligence surveillance is what our foreign intelligence agencies do–and the inevitable Casablanca reference from DNI Clapper.

Ditto that and General Alexander’s strange focus in his testimony on the patriotism of those with whom he works at NSA. As Rep. Schakowsky pointed out, this is a total red herring; criticisms of NSA surveillance have almost entirely focused on their legal and political architecture, and not on alleged “unpatriotic” acts by specific government operators. Nevertheless, a good 20 minutes of air time featured either defenses of these employees from the government witnesses, or hortatory statements of praise from committee members. Isn’t this one of the few real points of consensus, here–that we’re all doing what we think is best for the United States?

And speaking of unpatriotic, of course there had to be discussion of he-who-must-not-be-named, including a particularly… strange… exchange between Rep. Bachmann and General Alexander about whether Snowden violated the Constitution–and Alexander’s answer of “yes.” New game for my first-year constitutional law students: identify the constitutional provision that Snowden violated. Hint: It’s a trick question.

Don’t get me wrong; Merkelgate is an interesting public policy issue; the patriotism of government foreign intelligence operators is worth valuing; and I, for one, don’t think there’s any real doubt that Snowden violated the Espionage Act. The problem with the focus on these topics yesterday was the extent to which they obfuscated the matter at hand, i.e., the legal questions surrounding the bulk telephony metadata program and PRISM (among others), and whether / how FISA should be reformed in light of those concerns. Simply put, most of the hearing seemed like an awful waste of time–especially for four senior government officials who surely have better things to do.

II. The Government Witnesses’ Largely Uncritical–But Unsolicited–Thoughts on Reforms

Another reason why the various distractions were so disappointing was because, on the few occasions the government witnesses were pressed to respond to specific reform proposals, their responses were not nearly as negative as what might have been expected. At various points, both DNI Clapper and General Alexander expressed at least a modicum of support for increasing some of the internal checks and balances–whether through a Senate-confirmed NSA Inspector General, increased adversarial process in the FISA Court, or otherwise. Indeed, we even heard, for what I’m pretty sure is the first time, a specific articulation of the three capabilities that the government believes it needs to retain as part of any modified metadata collection program. And although Deputy Attorney General Cole hinted at potential constitutional concerns at the margins (on which I hope to have more to say later–including reactions to this Congressional Research Service report on the subject), he, too, seemed not completely averse to the idea of some kind of “special advocate” to participate in at least some proceedings before the FISA Court, whether as a party or a court-appointed amicus.

The problem is that we didn’t get any real elaboration from any of the government witnesses on these points because few–if any–of the committee members pressed them on the subject. For example, no one asked Deputy Attorney General Cole to elaborate on the constitutional concerns–or the extent to which they can be ameliorated through careful drafting. No one asked DNI Clapper or General Alexander whether increased transparency with regard to FISA Court opinions would actually harm national security so long as the government still had an opportunity to make necessary redactions. And perhaps most tellingly, no one asked any of the government witnesses whether, in their view, it would be better in the long term, and for other not-yet-leaked programs, to be out in front of leakers like Snowden, as opposed to behind them… One would’ve thought these would’ve been relevant questions for a hearing about “Potential Changes to [FISA],” but c’est la vie.

III. “You can’t have your privacy violated if you don’t know your privacy is violated…”

Finally, because the first panel went on for as long as it did, there wasn’t a lot of time left for the second panel, featuring former NSA General Counsel and DHS Assistant Secretary Stewart Baker, former OLC head Steve Bradbury, and me. But I thought one of the remarkable moments during that panel came toward the end–in an exchange between me and Chairman Rogers. The exchange has already garnered at least some attention elsewhere; the short version is that, in response to the suggestion that everything must be working the way it’s supposed to because “no one has complained” that their privacy has been violated, I asked Chairman Rogers who, exactly, is in a position to complain. Chairman Rogers’ response: “Somebody whose privacy was violated. You can’t have your privacy violated if you don’t know your privacy is violated, right?”

Off the cuff, the best I could do to respond was refer the Chairman to the tree that falls in the forest. But the more I think about this question, the more I have to say that (1) I could’ve come up with a better answer (e.g., “ask Erin Andrews“); and (2) I’m a bit floored that the Chairman of the House committee tasked with oversight of the U.S. intelligence community (who is, by law, a member of the Gang of Eight) appears to have this view of our privacy rights (or lack thereof). I’ve certainly had principled disagreements in the past with those who have defended the adequacy and sufficiency of existing oversight mechanisms, but I have to wonder if such mechanisms could ever be sufficient in a world in which this is the view of someone with such a vital oversight role. Thus, whereas an overwhelming majority of the media coverage of yesterday’s hearing has focused on the statements by the government witnesses, it’s this exchange, and what it says about some of the more basic assumptions undergirding this entire conversation, that I suspect will be the lasting memory I take away from yesterday’s hearing. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).