NSA FISA Metadata Program: House Members Were Never Briefed On Phone Records Program In 2011, Rep. Amash Says

on August 12 2013 3:28 PM
National_Security_Agency_headquarters,_Fort_Meade,_Maryland
National Security Agency headquarters in Maryland Wikimedia Commons

As part of its justification for the National Security Agency’s massive data collection programs, President Obama and administration officials have argued that every member of Congress has been briefed on the programs. Those statements received immediate pushback from lawmakers who said they were kept in the dark about, at the very least, the scope of the programs.

Now, it turns out that in February 2011, the House Intelligence Committee decided to withhold a briefing document on the bulk phone data collection program that was supposed to be reviewed by all members of the House of Representatives.

“I can now confirm that the House Permanent Select Committee on Intelligence did NOT, in fact, make the 2011 document available to Representatives in Congress,” Rep. Justin Amash, R-Mich., a vocal opponent of the surveillance programs, wrote in a Facebook post late Sunday night.

In an attempt to dispel some of the criticism surrounding the intelligence community’s surveillance programs -- and the secrecy surrounding those programs -- nearly two weeks ago the director of National Intelligence, James Clapper, declassified three documents in a gesture toward increased transparency. Two of the documents were briefings to Congress in December 2009 and February 2011 -- proving that all members of Congress had access to information about the bulk collection programs revealed by former contractor Edward Snowden.

But as Amash indicated, not all members of Congress actually had access to these documents. In February 2011, the House Intelligence Committee decided not to share the document with all House members. The result is that House members elected in 2010 and 2012, including a large number who voted on the 2011 USA Patriot Act reauthorization that renewed section 215, the provision under which the bulk collection of Americans’ phone records is authorized, had not seen the briefing.

A few weeks ago, Amash’s office noted something fishy in a letter from Clapper to Sen. Ron Wyden, D-Ore., another vocal critic of the bulk surveillance programs. The letter stated that the 2009 briefing paper on the bulk phone records programs from the intelligence community had been made available to all members of Congress through the intelligence committees. The letter noted that an updated version had been given to the two committees before the Patriot Act reauthorization in February 2011, but was silent on whether the intelligence committees had allowed members to access the document. So Amash’s office asked the House Intelligence Committee what had happened.

“We received confirmation from them on Friday afternoon that the committee in its own discretion had not made the document available to House members in February 2011, as Congress was considering reauthorizing 215,” Amash spokesman Will Adams wrote in an email Monday.

As Amash points out in his Facebook post, this means that the representatives elected in 2010 -- a wave election for Republicans -- did not have access to the document going into a vote on reauthorizing the Patriot Act. That year, 91 house members, 21 percent of the lower chamber, had been elected in November 2010. Eighty-three new members, some returning after leaving office, were elected in November 2012.

A spokesman for the Senate Intelligence Committee confirmed that it did make the 2011 letter available to all senators. Susan Phalen, a spokeswoman for the House Intelligence Committee, emailed a statement stressing the committee's dedication to keeping members informed, but did not specifically address why the committee decided to withhold the 2011 briefing:

“The House Intelligence Committee makes it a top priority to inform Members about the intelligence issues on which Members must vote. This process is always conducted consistent with the Committee's legal obligation to carefully protect the sensitive intelligence sources and methods our intelligence agencies use to do their important work.  Prior to voting on the PATRIOT Act reauthorization and the FAA reauthorization, Chairman Rogers hosted classified briefings to which all Members were invited to have their questions about these authorities answered.  Additionally, over the past two months, Chairman Rogers has hosted four classified briefings, with officials from the NSA and other agencies, on the Section 215 and Section 702 programs and has invited all Republican Members to attend and receive additional classified briefings on the use of these tools from Committee staff.  The Committee has provided many opportunities for Members to have their questions answered by both the HPSCI and the NSA. And Chairman Rogers has encouraged members to attend those classified briefings to better understand how the authorities are used to protect the country.”

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