[Congressional Record (Bound Edition), Volume 159 (2013), Part 11]
[Senate]
[Pages 16760-16762]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    NSA OVERSIGHT AND ACCOUNTABILITY

  Mr. LEAHY. Mr. President, we are at a watershed moment in the history 
of intelligence oversight, like nothing I have seen since the Church 
Committee. Some of the recent revelations have led to important 
national conversations about the scope of our Nation's intelligence 
gathering powers here at home, and to renewed legislative efforts to 
recalibrate those authorities and the related oversight regimes. The 
USA FREEDOM Act that Congressman Jim Sensenbrenner and I introduced 
last week along with more than 100 members of Congress does just that.
  It is important, however, to acknowledge that some of the leaks have 
led to needless risk to our national security and have threatened our 
relationships with some of our most important international partners.
  And all of this leads back to a 29-year-old contractor named Edward 
Snowden.
  Let me make clear once more that I do not condone the way any of 
these highly classified programs were disclosed. I am deeply concerned 
about the potential damage to our intelligence gathering capabilities, 
foreign relationships, and national security.
  I am also deeply concerned that one person could wreak this much 
havoc in such a short period of time. Especially in the wake of the 
Private Manning leaks, I do not understand how the National Security 
Agency could have allowed this to happen.
  This past weekend, Colbert King wrote in the Washington Post that 
this damage was, in a sense, self-inflicted. I ask unanimous consent 
that the King op-ed be printed in the Record. As Mr. King put it, ``I 
want to know how Snowden got his hands on so much of the nation's most 
sensitive intelligence and was able to flee the country, all within 
three months.''
  I want to know too. We need to hold people accountable for allowing 
such a massive leak to occur and we need to change the way we do 
business to ensure that we prevent this type of breach in the future. 
In public and in private, I have continued to ask the leaders of the 
intelligence community to tell me who is being held accountable and 
what is being done to prevent this from happening again.
  Without adequate answers to these questions, the American people are 
rightly concerned that their private information could be swept up into 
a massive database, and then compromised. The NSA has acknowledged that 
it is collecting U.S. phone records on an unprecedented scale, and that 
it is also collecting massive amounts of Internet content against 
targets abroad, which also includes some communications of law-abiding 
Americans. And yet the government asks us to trust that it will keep 
this information safe, and that we should have faith in its internal 
policies and procedures.
  This plea comes from the same intelligence community that the FISA 
court found to have made substantial misrepresentations about the scope 
of its collection; and the same intelligence community that allowed 
Edward Snowden to steal such vast amounts of information.
  And it comes from the same intelligence community whose inspector 
general just wrote to tell me that he is unable at this time to conduct 
a

[[Page 16761]]

communitywide review of government activities conducted under section 
215 of the USA PATRIOT Act and section 702 of the Foreign Intelligence 
Surveillance Act. I ask unanimous consent that the September 23, 2013, 
letter from a bipartisan group of Senate Judiciary Committee members to 
the inspector general of the intelligence community be printed in the 
Record, as well as his November 5, 2013, response.
  The intelligence community faces a trust deficit, and I am 
particularly concerned that the NSA has strayed and overreached beyond 
its core missions. One important step toward rebuilding that trust 
would be for the NSA to spend less of its time collecting data on 
innocent Americans, and more on keeping our Nation's secrets safe and 
holding its own accountable.
  The Senate Judiciary Committee will continue its work on these issues 
in the next few weeks. On November 13, the Subcommittee on Privacy, 
Technology, and the Law will hold a hearing on Senator Franken's 
Surveillance Transparency Act, which I have cosponsored. And on 
November 20, I have invited back to the committee Director of National 
Intelligence James Clapper, NSA Director Keith Alexander, and Deputy 
Attorney General James Cole for another hearing to review the 
intelligence community's surveillance authorities.

                [From the Washington Post, Nov. 2, 2013]

      Latest NSA Spying Revelations Distract From the Real Issues

                          (By Colbert I. King)

       What's this about governments spying on their closest 
     allies?
       We called it ``the bubble.'' It was a 12-by-15-foot 
     acoustic conference room made of clear plastic and aluminum. 
     There were at least five inches of space between the walls of 
     the bubble and the walls of the room in which it was located. 
     The bubble's plastic walls, ceiling and floor allowed visual 
     inspection for electronic listening devices, or ``bugs.''
       As an extra security measure, a noise-generating machine 
     was installed in the outer room to prevent interception of 
     any discussions of classified information within the bubble. 
     The outer room was secured by a combination lock, the code 
     known only to my office.
       The first U.S. ``bubble'' was installed after hidden 
     microphones were found in American diplomatic missions in 
     Moscow, Prague and elsewhere in the 1960s.
       Our bubble, within a room on an upper floor of the U. S. 
     Embassy in Bad Godesberg, West Germany, was a countermeasure 
     against possible technical penetration by the Soviet KGB and 
     the East German Stasi. But Eastern Bloc countries weren't the 
     only concern.
       Our bubble allowed classified discussions to occur beyond 
     the hearing of our host and ally, the-then Federal Republic 
     of Germany, and our friends down the road in the French and 
     British embassies.
       That was nearly 50 years ago.
       This year, in my current capacity, I was sitting in the 
     office of an ambassador in Washington when a member of his 
     staff alerted him to an important call. There was a phone on 
     the ambassador's desk. But he left the room to take the call.
       It turns out that his prime minister was calling from 
     overseas. The ambassador went to a secure location in the 
     embassy where he could conduct a confidential conversation.
       True, he was in the capital city of his nation's closest 
     ally. But the matter to be discussed was for the ears of his 
     countrymen only, U. S. friendship notwithstanding.
       Today, as the United States has been doing for decades, 
     close allies in Europe, the Middle East and elsewhere take 
     similar precautions even when their missions are in friendly 
     countries.
       Gentlemen may know that it is bad form to read each other's 
     mail or to eavesdrop. But in diplomacy and national security, 
     the desire to know what another country is up to tends to 
     overwhelm any sense of rectitude.
       Consequently, the European outrage over snooping among 
     friends may be slightly overdone. That is an entirely 
     separate matter from the National Security Agency's (NSA) 
     vacuum-cleanerlike collection of the communication records 
     and metadata of millions of Americans, including private 
     citizens and, apparently, foreign citizens both here and 
     overseas. The scope of that intelligence-collection program, 
     disputed by Gen. Keith Alexander, the director of the NSA, 
     this week is the cause of uproar around the country and in 
     Congress. There is still much to sort out and probably 
     reform.
       The monitoring of foreign leaders' phone calls, however, is 
     closer to the larger deed of spying on allied governments.
       Which takes us to an indelicate question: Why is a foreign 
     leader, a repository of a nation's secrets, communicating by 
     text messages and smartphone?
       The most junior Foreign Service officer or government civil 
     servant entrusted with sensitive information assumes that e-
     mails and cellphones are susceptible to eavesdropping. What 
     makes a head of state behave as if he or she is immune from 
     monitoring?
       Which brings up another tactless question: Why haven't the 
     security services of those foreign leaders developed 
     countermeasures to prevent successful spying on personal 
     communications?
       The danger here isn't simply that the NSA may have 
     overstepped its bounds with respect to U.S. allies. The 
     intelligence services of the foes of Germany, France, Spain, 
     Brazil and the like may have the capacity to listen in on 
     high-level conversations.
       The naivete of outraged foreign leaders and their 
     vulnerability to spying are nearly--but not totally--as 
     surprising as the scale of NSA snooping.
       The NSA revelations, meanwhile, should not draw attention 
     away from the revelations' primary source: Edward Joseph 
     Snowden.
       How in the world is it possible that a high school dropout 
     with a GED, a community college student who didn't graduate, 
     a failed Army recruit and security guard can catapult himself 
     into a CIA information technology job, an overseas posting 
     and subsequently a $200,000-a-year job with a company 
     contracted to do NSA work in Hawaii, where he was able to 
     gain access to the crown jewels of America's secrets?
       Whistleblower, traitor, patriot: Debate the labels all you 
     want. The government has charged him with espionage. Take it 
     up with Attorney General Eric Holder.
       I want to know how Snowden got his hands on so much of the 
     nation's most sensitive intelligence and was able to flee the 
     country, all within three months.
       Damage? Done by the U.S. government to itself.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                               Washington, DC, September 23, 2013.
     Hon. I. Charles McCullough III,
     Inspector General of the Intelligence Community, Office of 
         the Director of National Intelligence, Washington, DC.
       Dear Inspector General McCullough: Recent disclosures about 
     classified government surveillance activities have generated 
     significant public discussion about the breadth of these 
     programs, many of which are conducted pursuant to the Foreign 
     Intelligence Surveillance Act (FISA), and the need for 
     appropriate oversight and checks and balances.
       In particular, concerns have arisen about activities 
     conducted under Section 215 of the USA PATRIOT Act and 
     Section 702 of FISA, which was enacted as part of the FISA 
     Amendments Act of 2008. Recently declassified documents 
     appear to reveal numerous violations of law and policy in the 
     implementation of these authorities, including what the FISA 
     Court characterized as three ``substantial 
     misrepresentation[s]'' to the Court. These declassified 
     documents also demonstrate that the implementation of these 
     authorities involves several components of the Intelligence 
     Community (IC), including the National Security Agency, 
     Department of Justice, Federal Bureau of Investigation, 
     Central Intelligence Agency, and the Office of the Director 
     of National Intelligence, among others.
       We urge you to conduct comprehensive reviews of these 
     authorities and provide a full accounting of how these 
     authorities are being implemented across the Intelligence 
     Community. The IC Inspector General was created in 2010 for 
     this very purpose. Comprehensive and independent reviews by 
     your office of the implementation of Sections 215 and 702 
     will fulfill a critical oversight role. Providing a publicly 
     available summary of the findings and conclusions of these 
     reviews will help promote greater oversight, transparency, 
     and public accountability.
       In conducting such reviews, we encourage you to draw on the 
     excellent work already done by the Inspectors General of 
     several agencies, including the Department of Justice, in 
     reviewing these authorities. But only your office can bring 
     to bear an IC-wide perspective that is critical to effective 
     oversight of these programs. The reviews previously conducted 
     have been more narrowly focused--as might be expected--on a 
     specific agency.
       In particular, we urge you to review for calendar years 
     2010 through 2013:
        The use and implementation of Section 215 and 
     Section 702 authorities, including the manner in which 
     information--and in particular, information about U.S. 
     persons--is collected, retained, analyzed and disseminated;
        applicable minimization procedures and other 
     relevant procedures and guidelines, including whether they 
     are consistent across agencies and the extent to which they 
     protect the privacy rights of U.S. persons;
        any improper or illegal use of the authorities or 
     information collected pursuant to them; and
        an examination of the effectiveness of the 
     authorities as investigative and intelligence tools.
       We have urged appropriate oversight of these activities 
     long before the problems

[[Page 16762]]

     with the implementation of these FISA authorities became 
     public. We believe it is important for your office to begin 
     this review without further delay.
       Please proceed to administratively perform reviews of the 
     implementation of Section 215 of the USA PATRIOT Act and 
     Section 702 of FISA, and submit the reports no later than 
     December 31, 2014. Thank you in advance for your efforts to 
     ensure a full accounting of the implementation of these 
     surveillance authorities across the Intelligence Community.
           Sincerely,
         Patrick Leahy, Charles Schumer, Sheldon Whitehouse, 
           Christopher Coons, Richard Blumenthal, Chuck Grassley, 
           Ted Cruz, Michael S. Lee, Jeff Flake.
                                  ____

         Inspector General of the Intelligence Community
                                 Washington, DC, November 5, 2013.
     Memorandum for: See distribution.
     Subject: IC IG Review of Section 215 of the USA PATRIOT Act 
         and Section 702 of FISA Authorities.
       Thank you for your 23 September 2013 letter requesting that 
     my office review the Intelligence Community's (IC) use of 
     Section 215 of the USA PATRIOT Act authorities and Section 
     702 of FISA authorities.
       At present, we are not resourced to conduct the requested 
     review within the requested timeframe. As you stated in your 
     letter, several IC inspectors general have oversight of the 
     IC's use of foreign electronic surveillance authorities. 
     While my office has the jurisdiction to conduct an IC-wide 
     review of all IC elements using these authorities, such a 
     review will implicate ongoing oversight efforts. Therefore, I 
     have been conferring with several IC Inspectors General Forum 
     members in order to consider how such a review might be 
     accomplished given the potential impact to IG resources and 
     ongoing projects. As my IG colleagues and I confer regarding 
     the possibility of conducting a joint review of the requested 
     topic, I will keep you and the committee staff informed.
       Again, I thank you for your continued support of the IG 
     community. If you have any questions regarding this subject, 
     please contact me or my Legislative Counsel, Melissa Wright, 
     at 571-204-8149.
           Sincerely,
                                       I. Charles McCullough, III,
     Inspector General of the Intelligence Community.

                          ____________________