Screen shot from broadcast of Senate Judiciary Committee hearing, where Sen. Dianne Feinstein joined the committee to give a statement

Senator Dianne Feinstein, the chairwoman of the Senate Select Committee on Intelligence, who has been fervent in defending the National Security Agency’s domestic surveillance programs, has issued a statement condemning NSA spying on allies of the United States, like German Chancellor Angela Merkel.

“Unless the United States is engaged in hostilities against a country or there is an emergency need for this type of surveillance,” Feinstein declared, “I do not believe the United States should be collecting phone calls or emails of friendly presidents and prime ministers. The president should be required to approve any collection of this sort.”

The spying on European allies, including the tapping of Merkel’s cellphone, apparently took place under Executive Order 12333. It falls under “timely and accurate information about the activities, capabilities, plans and intentions of foreign powers, organizations and persons and their agents,” which is “essential.”

Feinstein stated, “Unlike NSA’s collection of phone records under a court order,” which she very much supports, “it is clear to me that certain surveillance activities have been in effect for more than a decade and that the Senate Intelligence Committee was not satisfactorily informed. Therefore our oversight needs to be strengthened and increased.”

She noted the White House had told her spying on allies would not continue, but that did not change the fact that Congress needed to be informed of what the intelligence community is doing. The Senate intelligence committee, she said, would conduct a “major review into all intelligence collection programs.”

“Intelligence collection” is Feinstein’s euphemism for surveillance. She does not think they are surveillance programs. They just collect data. (It’s, well, I’ll let you pick your favorite word to describe it.)

Feinstein should not be allowed to simply trot out this statement for “total review” and make it seem like the NSA hid information from Congress. She bears responsibility for not knowing.

Former NSA contractor Edward Snowden’s disclosures have put the agency in the hot seat for the past months, making intelligence community leaders unusually willing to cough up information requested by members of Congress. Any of this information could have been gleaned from Gen. Keith Alexander and others in the NSA if she had pushed for it.

In fact, back in August, Feinstein acknowledged that this kind of surveillance was a kind the Senate intelligence committee was not properly overseeing:

By law, the Intelligence Committee receives roughly a dozen reports every year on FISA activities, which include information about compliance issues. Some of these reports provide independent analysis by the offices of the inspectors general in the intelligence community. The committee does not receive the same number of official reports on other NSA surveillance activities directed abroad that are conducted pursuant to legal authorities outside of FISA (specifically Executive Order 12333), but I intend to add to the committee’s focus on those activities.

As is clear, Feinstein said her intention was to focus on activities under Executive Order 12333. That would have included spying on allies, but the committee under her leadership did not conduct a review of these activities, which she knew needed to be reviewed.

Inadequate oversight over surveillance the agency believed fell under Executive Order 12333 was further shown when Director for National Intelligence James Clapper essentially refused to address violations under this order at a Senate Judiciary Committee hearing because he did not think the intelligence community had to disclose details on violations.

What if Snowden had not released documents showing the NSA was spying on allies? What if newspapers in these countries with spied upon leaders had not published them?

There would be no outrage, no controversy and no scandal over whether the president knew about the surveillance or not. There would be no motivation for Feinstein to do her job and conduct not just a “review” of all NSA “intelligence collection programs” but a “major review” of all NSA “intelligence collection programs.”

And why is this “major review” just now being launched? Why hasn’t a “major review” been underway? These revelations have been surfacing in the media since June.

The answer is Feinstein has been acting as a humble servant of the US intelligence community by focusing on only a bulk data collection program under the PATRIOT Act and a Foreign Intelligence Surveillance Act Amendments Act program known as 702, which the NSA has used to collect Americans’ communications and store them for searches at a later date.

Only one open hearing has been held by the Senate Intelligence Committee since the disclosures began to be published.

During that hearing on September 26, Feinstein said, “It is abundantly clear that a total review of all intelligence programs is necessary so that members of the Senate Intelligence Committee are fully informed as to what is actually being carried out by the intelligence community.”

It is more than a month later. Why didn’t this “total review” begin back in September?

Feinstein shamefully used the hearing to invoke terrorism in Kenya and proclaim that all programs exposed by Snowden are “lawful, effective and conducted with careful oversight.” If that were true, there would be no need for a “total” or “major” review. So, which is it, Senator?

Perhaps, part of the reason why the review has not begun yet is because Feinstein has spent the time writing editorials for media organizations that could be used to help the NSA regain what legitimacy the agency has lost.

She had editorials published in the Wall Street Journal on October 13 and USA Today on October 20. In both she articulated a defense of NSA with a litany of misleading statements and outright lies. The arguments she made were articulated ahead of a “reform” bill she has introduced to not only further codify surveillance powers the NSA has abused and ineptly used but also give the NSA additional power to spy.

If there is a lack of oversight, it is not the fault of the US intelligence community or the leadership at the NSA. It is the fault of Senator Dianne Feinstein, as well as former FBI official, Rep. Mike Rogers, who chairs the House Intelligence Committee.

Rogers has published op-eds in the media defending and celebrating the NSA too.

Both chairs appear intent to use their positions of power to head off efforts for reform, which American citizens favor. They would rather be manipulative sales people for the US intelligence community, who helps them rebrand surveillance that has been exposed to not be what the government advertised.

Feinstein’s indicated opposition to the spying on prime ministers is telling, given how she has had no problem with citizens around the globe being targets of the US surveillance state. The powerful are off-limits while less powerful citizens of the world, whose privacy rights are violated, are just collateral damage.

With the two chairs continuing to push intelligence community propaganda in the media and in what few public hearings are held with intelligence agency leaders, there is little reason to take any criticisms of the NSA seriously. This is all part of a game to restore confidence in the NSA without actually removing any of the NSA’s power and Americans should be entirely wary of anything said.


Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."