Members of Congress demanded answers from representatives of the National Security Agency and other intelligence agencies on Capitol Hill Tuesday over whether their communications with foreign governments are intercepted by the intelligence community.
During a hearing on the renewal of an expiring law that lets NSA intercept the communications of foreigners and their exchanges with Americans, senators pressed attorneys and leaders from the intelligence community to answer whether their conversations with foreign governments are surveilled and if so, whether lawmakers have a legal right to know.
“Am I entitled as a United States Senator to know, whether or not the intelligence community monitored a conversation I had with a foreign leader abroad?” South Carolina Republican Senator Lindsey Graham asked.
Graham expressed concern about whether conversations like then-incoming National Security Advisor Michael Flynn had with Russian Ambassador Sergey Kislyak in December about lifting Russian sanctions could be intercepted by intelligence agencies, de-anonymized and used against government employees “politically.” Under Section 702 of the 2008 Foreign Intelligence Surveillance Act (FISA) Amendments Act, conversations like Flynn’s can be intercepted without a warrant when the foreign party is overseas.
The law expires at the end of December. The Senate Judiciary Committee convened Tuesday’s hearing to discuss whether and how to renew the law — something Graham indicated he was not inclined to do without knowing if it can be abused to smear officials like Flynn. Americans incidentally collected under such “upstream” surveillance are anonymized to protect their privacy unless, like in Flynn’s case, investigators under the Obama administration request that their identities be unmasked. Reports of Flynn’s conversations were leaked to the press, he was fired and is now under FBI investigation.
“I don’t really mind if you’re listening,” Graham said. “I do mind if somebody can take that conversation and use it against me politically. Is that possible under the current system?”
Representatives from NSA, the Office of the Director of National Intelligence (ODNI), FBI, and the Justice Department said they’re working with congressional intelligence committees on an answer, but wouldn’t confirm if Graham has the legal right to know.
“It’s my understanding, Senator, we have that request from you and we are processing it,” ODNI Acting General Counsel Bradley Booker said.
“Yeah, like months ago, so am I ever gonna get it in my lifetime?” Graham interjected. “And if you’re not gonna give it to me, tell me why?”
Graham repeated the question to blank looks from the witness table until other members of the committee complained he ran over his time limit for questions. Chairman Chuck Grassley gaveled the committee into silence and insisted Graham would continue until he received an answer.
“I want you to proceed until you get an answer,” Grassley barked. “I mean if there’s anything in this country people are entitled to, it’s at least an answer to their question.”
“I’m violently agreeing with you. So if I were you I’d answer my question, because he’s mad,” Graham quipped to the witness table.
Booker said there was no legal reason the intelligence community couldn’t answer Graham’s question, and that it would continue processing his request.
The exchange highlighted lawmakers’ growing impatience with witnesses from the intelligence community declining to answer questions, and further declining to provide sound legal backing for doing so. Director of National Intelligence Dan Coats and NSA Director Mike Rogers similarly refused to answer during a June hearing whether President Donald Trump had pressured them to make public statements denying his campaign colluded with Russia during the 2016 election.
Attorney General Jeff Sessions declined to answer questions in June about his conversations with Trump concerning the firing of former FBI Director James Comey, despite the fact the administration has not invoked executive privilege.
Congress isn’t the only branch of government expressing displeasure with a lack of intelligence community transparency. Senators on both sides of the aisle pointed to a declassified April opinion from the Foreign Intelligence Surveillance Court (FISC), which approves surveillance requests for the intelligence community in secret, highlighting compliance issues with Section 702 including a failure to disclose those issues.
The typically intel-friendly court that approves the vast majority of surveillance requests chastised the government for an “institutional lack of candor” on a “very serious Fourth Amendment issue.” One such opinion said NSA has engaged in “significant overcollection…including the content of communications of non-target U.S. persons and persons in the U.S.”
As a result, NSA in April suspended a practice known as “about” collection — when NSA sweeps up American emails and text messages exchanged with overseas users that simply mention search terms — like an email address belonging to a target — but isn’t to or from a target. Witnesses at Tuesday’s hearing said they’re working on a technical solution to reengage about collection.