Obama's NSA Defense: Congress Can Raise Objections It Can't Actually Raise
President Obama defended the National Security Agency's collection of all our phone calls on Friday by saying at a press briefing that if the agency was acting like "Big Brother and how this is a potential program run amok," then Congress would be free to air those concerns. This is not true.
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"When it comes to telephone calls, every member of Congress has been briefed on this program," Obama said. "With respect to all these programs, the relevant intelligence committees are fully briefed on these programs." He noted that the secret FISA court and Congress provide a check on the executive branch's use of this power. "I think, on balance, we have established a process and a procedure that the American people should feel comfortable about," Obama said. "These programs are subject to congressional oversight and congressional reauthorization and congressional debate. And if there are members of Congress who feel differently, then they should speak up." He later added, "And if in fact there was — there were abuses taking place, presumably, those members of Congress could raise those issues very aggressively. They're empowered to do so."
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But they couldn't speak up! Or at least they're certainly couldn't "raise those issues very aggressively" anywhere outside of a classified hearing of, say, the Senate Intelligence Committee, because, legally, they're not empowered to air their complaints in public. The NSA's phone call metadata collection program was classified until Director of National Intelligence James Clapper declassified parts of it in order to keep defending it from a Guardian exposé. That means it's not just that members of Congress couldn't air complaints about the program — they couldn't acknowledge it's existence.
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Sens. Mark Udall and Ron Wyden both tried to raise objections to the program without spilling secrets, writing in a letter to Attorney General Eric Holder last year that "there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows." Udall told The Denver Post on Thursday that he "did everything short of leaking classified information" to bring attention to the NSA's phone metadata collection. At a hearing of the Senate Appropriations committee on Thursday, Sen. Mark Kirk was one of several Senators to ask Attorney General Eric Holder, vaguely, about the phone-call mining. "With all due respect, I don't think this is an appropriate setting to discuss that issue," Holder answered. The nation's top lawyer appeared to be reminding a leading member of Congress that public Congressional hearings are not where members of Congress are allowed to talk about the NSA's spying program.
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Jennifer Hoelzer, a former aide to Wyden, explained how hard it is to raise concerns about a program you can't acknowledge the existence of. Writing in the Huffington Post, she says, "Seriously, do you have any idea how frustrating it is to have your boss ask you to get reporters to write about something he can't tell you about?" Hoelzer explains, "Because, while he may be a senior member of the Senate Select Committee on Intelligence, the executive branch retains the sole authority to classify and declassify information." The executive branch can use this to its advantage:
It's why, for example, President Bush was able to point to a handful of details supporting his case that torture works, without worrying that someone might be able to declassify (or even acknowledge the existence of) reams of evidence that didn't support his case.
"I think there's a suggestion that somehow any classified program is a quote-unquote 'secret' program which means it's somehow suspicious," Obama said on Friday. The president said his position was not "trust me, we're doing the right thing, we know who the bad guys are" but that there are enough checks in place. "If people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution and due process and rule of law, then we're going to have some problems here." We're not going to have many easy answers from each branch either.
