Senators press NSA official over shuttered phone surveillance program

Senators press NSA official over shuttered phone surveillance program
© Greg Nash

Bipartisan members of the Senate Judiciary Committee on Wednesday sharply questioned a top National Security Agency (NSA) official over the federal government's shuttered phone surveillance program. 

Top senators on the key committee said they're unsure why they should reauthorize a program, as the Trump administration has requested, that the NSA abandoned earlier this year amid a spate of technical difficulties. 

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"Why should we reauthorize it if you shut it down?" Senate Judiciary Chairman Lindsey GrahamLindsey Olin GrahamGraham backs Trump, vows no money for WHO in next funding bill UN biodiversity chief calls for international ban of 'wet markets' Graham asks colleagues to support call for China to close wet markets MORE (R-S.C.) asked NSA official Susan Morgan. 

He questioned whether it is "responsible" for Congress to reauthorize the NSA to run the call detail records program, which allowed the government to access information about millions of Americans' communications.    

The hearing comes as Congress gears up for a battle over whether to reauthorize expiring provisions in the 2015 USA Freedom Act, a surveillance reform bill that passed following whistleblower Edward Snowden's revelations about the enormous amount of sensitive information the government was collecting on everyday Americans.  The provisions are expiring next month.

The USA Freedom Act created a pared-down version of the mass phone records surveillance program that Snowden brought to light. And now, months after top intelligence officials revealed that the NSA shuttered the program as it struggled to adhere to the reforms, lawmakers are tasked with deciding whether the government should retain the authority to reopen it at any point.

"It’s really not clear to me why a program with limited intelligence value and clear compliance problems should be reauthorized," Sen. Dianne FeinsteinDianne Emiel FeinsteinCOVID-19 and the coming corruption pandemic Encryption helps America work safely — and that goes for Congress, too Democratic lawmakers demand government stop deporting unaccompanied children MORE (Calif.), the top Democrat on the committee, said. "And unless there is good reason to believe that it should, I do not believe we should reauthorize it."

Throughout the hours-long hearing, senators pressed Morgan to offer any concrete examples of the program's intelligence benefits. 

"We’re going to be legislating in the dark" without more specifics, Sen. Patrick LeahyPatrick Joseph LeahyGraham backs Trump, vows no money for WHO in next funding bill Justice IG pours fuel on looming fight over FISA court Democratic senators ask Pompeo to provide coronavirus aid to Palestinian territories MORE (D-Vt.) — who helped write the USA Freedom Act — told Morgan.

Morgan said the NSA "supports reauthorization of the ... provision so the government will retain this potentially valuable tool should it prove useful in the future." She described counterterrorism operations as "dynamic," and said the NSA does not want to lose a "tool in our toolbox." 

But she did not offer specifics on how the NSA has been able to use phone records obtained through the program to aid counterterrorism operations. She said that information was classified and offered to give a more detailed response behind closed doors.

"Can the NSA provide an example of information obtained by the [call detail records] program that resulted in discovery of previously unknown terrorist plot?" Feinstein asked.

"In an open setting, I can’t answer that in a yes or no context," Morgan replied.

Sen. Mike LeeMichael (Mike) Shumway LeeJustice IG pours fuel on looming fight over FISA court Senator Tom Coburn's government oversight legacy Trump on Romney's negative coronavirus test: 'I am so happy I can barely speak' MORE (R-Utah), who co-wrote the USA Freedom Act with Leahy, grew visibly upset during the exchange.

"I will go there right now," Lee said, referring to a nearby secure room. 

"I’m a defender of your program," Sen. Ben SasseBenjamin (Ben) Eric SasseAmerica's governors should fix unemployment insurance Mnuchin emerges as key asset in Trump's war against coronavirus House Republican urges Pompeo to take steps to limit misinformation from China on coronavirus MORE (R-Neb.) said during the fast-paced exchange. "But if you can’t answer this question, why don’t we go to a [sensitive compartmented information facility] right now?"

The call detail records program gathered information on incoming and outgoing domestic text messages and phone calls to aid the government in terrorism investigations. Civil liberties advocates are pressing Congress to allow the program to sunset entirely, claiming that privacy concerns outweigh any national security benefits.

"Today's hearing further proves the urgent need for Congress to end the Trump administration's ability to spy on millions of innocent people in the United States," Sean Vitka, policy counsel with civil liberties group Demand Progress, said in a statement.

Vitka said the Trump administration is "fighting for the permanent reauthorization of a notorious mass surveillance authority that has never proven useful, and has rarely, if ever, been operated in full compliance with the laws and rules governing surveillance of call records." 

Several Republicans have signaled they are open to maintaining other surveillance authorities, including the ability for the government to obtain business records without a warrant.

"All of us up here are worrying about, how do we explain to our constituents [that we] reauthorize[d] a program that’s been shut down?" Graham said. "How do we explain [this] the day after an attack?" 

Graham later told reporters that he is "torn" on the issue of reauthorizing the call records program, and pledged that Judiciary members will hold a classified briefing with the NSA official soon.