Milbank: All cheers for surveillance

WASHINGTON — The Founders created a system of checks and balances. Those overseeing the nation's spying have switched to a system of cheers and bouquets.

This was the impression given by members of the House intelligence committee as they held an open-to-the-public hearing Tuesday on the National Security Agency's snooping into Americans' phone and Internet records.

"That's a patriot!" Chairman Mike Rogers, R-Mich., said of Gen. Keith Alexander, the NSA director.

"Your leadership in NSA has been outstanding," added Rep. Dutch Ruppersberger of Maryland, the committee's ranking Democrat.

Only his spymaster's cool kept Alexander from blushing.

"Thank you for the kind words," he replied. "As you noted, we have extraordinary people doing great work."

The hearing was really a pep rally, as lawmakers praised the officials involved in the surveillance programs and then yielded the floor for an hour so the officials could make statements about how responsible and restrained they've been.

The congressional overseers of the intelligence agencies quite clearly are captivated by — if not captives of — the people they are supposed to be supervising.

Rogers, in fact, seemed irritated by the notion of letting the public in on their little secret, a disclosure made necessary by Edward Snowden's leaks.

Rogers spoke disapprovingly of being "forced into the position of having so publicly discussed intelligence programs due to irresponsible criminal behavior."

FBI Deputy Director Sean Joyce, one of the witnesses, joined in the complaint that the "egregious leaks" have hurt national security because "now here we are talking about this in front of the world."

Those responsible for the programs shared few new details but offered many "trust us" reassurances.

"These programs are limited, focused and subject to rigorous oversight," Alexander testified.

"Rich and rigorous oversight," added Chris Inglis, Alexander's deputy.

"Extensive oversight," agreed James Cole, the deputy attorney general. "Robust and fairly intimate."

"Extensive and serious ... multilayered," amended Robert Litt, general counsel to the national intelligence director, James Clapper.

As evidence of this robustness, Cole cited a "report" issued last month finding that U.S. law "imposes at least as much, if not more, due process and oversight on foreign intelligence than other countries." He didn't mention that the "report" was published by a big lobbying firm.

Alexander said he would provide the committee with classified documents describing 50 cases in which the surveillance programs were helpful, but he only made two public Tuesday. The officials didn't explain why those cases, involving a plot to bomb the New York Stock Exchange and a terrorist financier in California, couldn't have been done with less-sweeping data collection.

Rep. Jan Schakowsky, D-Ill., who said the officials would have been better off providing information about the program "up front," asked whether their newfound transparency would include the public release, with redactions, of secret court opinions related to the surveillance programs.

"It's been a very difficult task," was Litt's noncommittal response.

Rep. Adam Schiff, D-Calif., asked how soon Litt would have an answer on declassifying the opinions.

"I'm hesitant to answer any question that begins 'how soon,'" Litt said.

Schiff, in the minority of lawmakers challenging the witnesses, suggested that the NSA might want to get the phone "metadata" from the telecommunications providers on a case-by-case basis rather than amass all the data for all Americans.

"The concern is speed in crisis," Alexander told him.

Schiff wasn't persuaded. "I think that the American people may be much more comfortable with the telecommunications companies retaining those business records," he said. As for the intelligence officials' boasts about self-supervision, Schiff added, "all those internal checks are valuable, but they're still internal checks."

While there's bipartisan consensus that the programs are valuable, it's a mystery why more lawmakers don't question the intelligence officials' just-trust-us assurances. After all, only three months ago, Clapper publicly told Congress that such programs didn't exist.

Congressional overseers have become apologists, assuring the public that the programs are "legal, court-approved and subject to an extensive oversight regime," as Rogers put it.

"This is very important that we get the message out to the American public that what we do is legal," Ruppersberger concurred. To that end, he asked Alexander about "unfortunate" criticism of the secret Foreign Intelligence Surveillance Act court as weak because it rarely turns down a government request.

"Do you feel in any way that the FISA court is a rubber stamp?" Ruppersberger asked.

"I do not," Alexander replied. "The federal judges on that court are superb."

When the executive branch thinks those checking its power are "superb," it's time for rebalancing.