This morning, a group of organizations led by the Center for Responsibility and Ethics in Washington (CREW), R Street, and the Sunlight Foundation released a public letter to House Speaker John Boehner and Minority Leader Nancy Pelosi calling for enhanced congressional oversight of U.S. national security surveillance policies.
The letter—signed by over fifty organizations, ranging from the Electronic Frontier Foundation, the Competitive Enterprise Institute, and the Brennan Center for Justice at the New York University School of Law, and a handful of individuals, including Pentagon Papers whistleblower Daniel Ellsberg—expresses deep concerns about the expansive scope and limited accountability of intelligence activities and agencies, famously exposed by whistleblower Edward Snowden in 2013. The letter states:
Congress is responsible for authorizing, overseeing, and funding these programs. In recent years, however, the House of Representatives has not always effectively performed its duties.
The time for modernization is now. When the House convenes for the 114th Congress in January and adopts rules, the House should update them to enhance opportunities for oversight by House Permanent Select Committee on Intelligence (“HPSCI”) members, members of other committees of jurisdiction, and all other representatives. The House should also consider establishing a select committee to review intelligence activities since 9/11. We urge the following reforms be included in the rules package.
The proposed modernization reforms include:
1) modernizing HPSCI membership to more accurately reflect House interests by allowing chairs and ranking members of other committees with intelligence jurisdiction to select a designee on HPSCI;
2) allowing each HPSCI Member to designate a staff member of his or her choosing to represent their interests on the committee, as is the practice in the Senate;
3) making all unclassified intelligence reports quickly available to the public;
4) improving HPSCI the speed and transparency of responsiveness to member requests for information; and
5) improving general HPSCI transparency by better informing members of relevant activities like upcoming closed hearings, legislative markups, and committee activities
The groups also urge reforms to empower all members of Congress to be informed of and involved with executive intelligence agencies’ activities. They are:
1) making all communications from the executive branch available to all Members unless the sender explicitly indicates otherwise;
2) reaffirming Members’ abilities to access, review, and publicly discuss materials already available to the public that are classified by the executive branch, as is the case with the Snowden leaks. Members should feel comfortable to discuss this kind of information without fear of reprimand;
3) providing Members with at least one staff member with access to classified information through a Top Secret/Special Compartmented Information (TS/SCI) clearance;
4) allowing Members to speak with whistleblowers without fear of reprisal; and
5) improving training for Members and staff on how to handle classified information and conduct effective congressional oversight of classified matters.
Over at the CREW blog, Daniel Schuman provides some more context of the problems these groups seek to address:
Members of Congress rely on staff to do a lot of work, but most staff working on intelligence issues are not permitted to hold the necessary security clearances to do their jobs. Sometimes, the Intelligence Committee in the House intercepts mail from the executive branch addressed to all members of Congress. That same committee sits on unclassified reports, refusing to make them available to the public. Briefings provided by the intelligence community are announced for inconvenient times, do not provide enough detailed information, and members of Congress often are not allowed to take notes on what was said.
The executive branch has 666,000 employees with top secret/SCI clearance and 541,000 contractors with top secret/SCI clearance, and yet often times members of Congress are not permitted to talk with one another about their briefings. Members of Congress are not allowed to publicly speak about—and staff may not read—classified information that has been published in the newspaper or on the internet. This makes no sense for the deliberative body that was designed as a check on executive power.
While these proposed reforms aim to improve congressional oversight through common-sense changes or clarifications in House procedure and committee structure, these still only address failures of intelligence oversight that we have gleaned from our current knowledge of the byzantine maze of surveillance agency activities so far. The picture painted by the little knowledge that have right now is not pretty. An associated white paper presenting the reforms in more detail notes:
The last decade-and-a-half has witnessed major intelligence community failures. From the inability to connect the dots on 9/11 to false claims about weapons of mass destruction in Iraq, from the unlawful commission of torture to the inability to predict the Arab spring, from lying to Congress about the NSA to CIA surveillance of Senate staff, the intelligence community has a credibility gap. Moreover, with recent revelations about secret government activities, to the apparent surprise of many members of Congress, it is increasingly clear that Congress has not engaged in effective oversight of the intelligence community .
To get a fuller picture of the extent of the problem, the letter proposes that the House adopt a special committee to conduct a distinct, broad-based review of the activities of the intelligence community after 9/11. Similar committees have been assembled in the past to address previous shortcomings:
The last time so many revelations of government misdeeds came to light in news reports, Congress reacted by forming two special committees to investigate intelligence community activities. The reports by the Church and Pike Committees led to wholesale reforms of the intelligence community , including improving congressional oversight mechanisms.
The magnitude of current revelations and intelligence community failures leads to this conclusion: the House (and Senate) must establish a distinct, broad-based review of the activities of the intelligence community since 9/11. The House should establish a committee modeled after the Church or Pike Committees, provide it adequate staffing and financial support, and give it a broad mandate to review intelligence community activities, engage in public reporting wherever possible, and issue recommendations for reform.
The Church and Pike Committees of the 1970’s were products of a decade of explosive revelations of government surveillance run amok. The white paper cites a 1974 New York Times exclusive report by Seymour Hersh that revealed the CIA had been operationalized to inspect the mail, telephone communications, and residences of tens of thousands of uncharged private citizens since the 1950’s. Earlier that year, allegations that the U.S. Army had been performing illegal surveillance of American citizens were verified and repudiated by Senator Sam Ervin’s Military Surveillance Investigations. In 1975, a bombshell NSA investigation published by the Times reported that the then largely-unknown intelligence unit “eavesdrops on virtually all cable, Telex, and other nontelephone communications leaving and entering the United States” and “uses computers to sort out and obtain intelligence from the contents” in the now-infamous Project Shamrock. The revealed executive abuses of the Nixon administration provided the cherry on top of a growing distrust and anger with surreptitious U.S. surveillance practices.
Today is another era of outrageous whitstleblower reports and rapidly dwindling trust in U.S. surveillance bodies. A mere 24 percent of Americans reported that they trust the government to “do the right thing” most of the time in 2013 Rasmussen poll. (A miniscule 4 percent of your fellow Pollyanna patriots trust Uncle Sam all of the time.) Meanwhile, technological advances have allowed U.S. intelligence agencies a greater degree of potential (and, as Snowden revealed, actual) surveillance than every before. This gap in trust and power simply cannot continue indefinitely.
While not without their problems, the Church and Pike committees are noteworthy milestones in reclaiming congressional accountability over executive intelligence agencies run amok. Creating a new committee to comprehensively assess current surveillance agency activities, warts and all, and recommend accountability measures to address the unknown excesses that likely lurk in the shadows is one step in the right direction toward taming back the tentacles of unlawful government surveillance.
But if there’s one thing we’ve learned from the fruits of the 1970’s committees—namely, the Foreign Foreign Intelligence Surveillance Act (FISA) of 1978—it’s that what once served as a hindrance to government abuses may one day become a party to it. For example, the Foreign Intelligence Surveillance Court (FISC) established by FISA that was intended to provide critical oversight of federal spying programs is today limited by the inadequate tools available to verify whether or not surveillance programs are lawful.
Imposing accountability on agencies whose missions are devoted to secrecy is a tough nut to crack. Our history struggling with this challenge suggests that these proposed reforms are good preliminary actions. But watching the watchers will continue to be an omnipresent duty.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.