After classified material leaked to the public last month revealed the scope of how the government collected Americans’ communications records, many members of Congress insisted they were in the dark about the extent of the National Security Agency’s surveillance efforts. However redacted documents released by the Office of the Director of National Intelligence Wednesday morning show that at least as far as bulk collection of Americans’ phone data is concerned, the extent of NSA surveillance was in plain sight.
When the controversy began in June, supporters of NSA surveillance pointed to a pair of letters, written in 2010 and 2011 respectively, alluding to classified reports made available to all members of Congress on how Patriot Act authorities were being used. Until now, it was impossible to know precisely how detailed the reports were about the extent of government data collection.
Now we have some idea.
Of the three documents disclosed by the government on Wednesday, a 2009 report states in the section devoted to Section 215 of the Patriot Act that “orders generally require production of the business records (as described above) relating to substantially all of the telephone calls handled by the companies, including both calls made between the United States and a foreign country and calls made entirely within the United States.” The section also notes that both Section 215 and the “pen register/trap and trace” provision of the Foreign Intelligence Surveillance Act, which was being used to collect the same kind of information about online communications rather than phone calls, “operate on a very large scale.” The 2011 report provides a similar summary of how the authorities are being used in almost identical language. Also released Thursday was the original secret court order requesting the all the communications records from the customers of a Verizon subsidiary that was published by The Guardian and the Washington Post. There are presumably similar orders in place for other telecommunications companies.
A spokesperson for California Sen. Dianne Feinstein, who chairs the Senate intelligence committee, told msnbc that the declassified reports posted online Wednesday were the same ones referred to in the letters.
The reports affirm that the current backlash in Congress is a product of public knowledge of the programs. Some legislators, like Democratic Sens. Ron Wyden of Oregon and Mark Udall of Colorado, had been making public statements for years that hinted at information members of Congress were being told in private. Legislators who say they were ignorant about how the authorities were being used prior to the revelations effectively made a choice not to be informed. They then voted to reauthorize these laws without knowing what they actually did. Those legislators who were exercising their oversight responsibilities and were concerned about surveillance couldn’t inform the public in detail about what was happening. Far from affirming the Obama administration’s insistence that congressional oversight serves as a key check on executive branch authority, it mostly raises the question of whether effective oversight can be conducted in secret.
The reports prove that absent former NSA contractor Edward Snowden’s leaks to The Guardian and the Washington Post that sparked the controversy, the current debate over surveillance powers wouldn’t even be happening. As long as the information was secret, legislators could renew these authorities without having to worry about a public backlash. It was only the leaks that spurred Congress into doing its job. That leaves legislators pushing to curtail government surveillance powers in the awkward position of owing their political momentum to a man the Obama administration wants extradited and prosecuted for espionage.