House Dems push for greater oversight, disclosure of overseas surveillance

House Democrats are pressing to expand congressional oversight and public disclosure of U.S. intelligence agencies conducting surveillance overseas.

The top Democrat on the House Judiciary Committee, Rep. John Conyers Jr. (Mich.), is pushing the White House and federal intelligence agencies to hand over more information about the number of Americans who have their communications monitored under the Foreign Intelligence Surveillance Act (FISA).

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“How do we make sure that FISA is not out of control? At this point we don’t have any way of knowing that,” Conyers said at a subcommittee hearing on the issue Thursday. “For goodness sake, just to ‘OK’ [FISA] again because we did it before, couldn’t we improve it a little bit?”

Conyers said he was “disturbed by how little we know and how much more we need to know” but was looking forward to meeting with the Director of National Intelligence James Clapper, a representative from the Justice Department (DOJ), and other committee members for a closed-door briefing next Thursday. 

Title VII of FISA, which is scheduled to expire at the end of the year, grants U.S. intelligence officials the power to monitor phone calls, emails and other communications of suspected terrorists abroad once they obtain a court order.

But some Democrats have expressed their fear that Americans are having their Fourth Amendment rights violated. They worry that a conversation abroad involving a U.S. citizen could be monitored, violating that person's privacy rights.

In 2009, The New York Times reported that the National Security Agency had been intercepting private communications between American citizens, which the Justice Department said it had taken steps to remedy. The newspaper also reported that U.S. intelligence officials tried unsuccessfully to monitor a member of Congress who was abroad.

Democrats have said that U.S. intelligence agencies are not forthcoming with the data Congress needs for appropriate oversight, such as the number of Americans who have been monitored by accident.

In what has become a highly unusual political scenario, House Republicans are supporting the Obama administration’s push to extend past the end of this year its existing surveillance powers under the FISA provision, while House Democrats are opposed to extending them without strengthening their oversight and transparency of the surveillance tools.

Rep. Jim Sensenbrenner (R-Wis.), the chairman of the subcommittee, said he was in favor of disclosure but worried about giving unnecessary information to terrorists.

“Say we release the actual number of people who were targeted, does that give the other side an indication as to the extent of the operational strength of our national security agencies?” Sensenbrenner asked.

Marc Rotenberg, the president of the Electronic Privacy Information Center (EPIC), said he didn’t think so.

Clapper, in a letter to Democratic Sens. Mark Udall (Colo.) and Ron Wyden (Ore.) last year, said turning over data about the number of Americans monitored under FISA wasn’t feasible.

“It is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority,” Clapper wrote.

Udall and Wyden cast the only votes in the Senate Intelligence Committee last week against extending the measure, which was approved by a vote of 13-2. The two senators demanded that the White House turn over records that detail how many Americans have been tracked overseas. 

Kenneth Wainstein, who worked at the DOJ during the creation of the recent FISA overhaul in 2008 under President George W. Bush’s administration, testified on Thursday that it was a highly sensitive and tricky situation.

“As a matter of principle, more information to the public is better, all things being equal,” he said. “However, in this area where you’re talking about intelligence officials coming into the FISA court [and] laying out the most sensitive information about sources and methods ...” he said, as Conyers interrupted him to declare that no Democrat was suggesting U.S. officials reveal sensitive information.

Sensenbrenner suggested another course of action: a public release — redacted in part for safety reasons — of the FISA courts’ decisions.

“Rather than playing the numbers game — either with the actual targets or the people who were incidentally surveilled — perhaps decisions of the FISA court, particularly the review of the FISA court appropriately redacted, would be able to give us the answer,” he said.

The argument over FISA was one of the most contentious of 2008, sharply dividing top Democrats. At the time, then-House Speaker Nancy Pelosi (D-Calif.) and then-Sen. Barack Obama (Ill.), the Democrats’ presumptive presidential nominee, drew the ire of liberals by voting for the measure.  

Pelosi and Obama said the bill contained necessary security enhancements while providing a check on then-President Bush’s power by putting surveillance approval authority in the hands of a FISA court.