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The U.S. Needs a New Church Committee

Given the intelligence and policy failures regarding our national defense and homeland security over the last 15 years, it is more important than ever to re-evaluate what is needed to create meaningful and lasting intelligence oversight.

December 12, 2014

Cross­pos­ted on Defense One.

In the early 1970s, a series of intel­li­gence leaks gave Amer­ic­ans their first glimpses into the U.S. govern­ment’s secret intel­li­gence oper­a­tions: illegal FBI and CIA surveil­lance and intim­id­a­tion of inno­cent Amer­ic­ans based upon their polit­ical views; milit­ary lead­ers hiding the truth about a war gone wrong; and a White House turn­ing national secur­ity tools against its polit­ical enemies.

It wasn’t a pretty picture, and the result­ing polit­ical climate of the post-Water­gate era allowed reform-minded members of Congress to initi­ate broad invest­ig­a­tions of intel­li­gence activ­it­ies. In the Senate, a bipar­tisan select commit­tee led by Sen. Frank Church (D-Idaho) was estab­lished in 1975 to invest­ig­ate the intel­li­gence agen­cies.

I sat down with two Church Commit­tee staff members to discuss their invest­ig­a­tion and the lessons that might be applic­able to those seek­ing similar reforms during today’s leaks reveal­ing secret intel­li­gence excesses, abuses, and misfeas­ance.

Fred­er­ick A.O. “Fritz” Schwarz, Jr. served as the Church Commit­tee’s chief coun­sel and is currently chief coun­sel to the Bren­nan Center for Justice at New York Univer­sity Law School. Schwarz discussed the Church Commit­tee’s work in uncov­er­ing govern­ment abuse.

The Church Commit­tee protec­ted legit­im­ate secrets while expos­ing the abus­ive intel­li­gence activ­it­ies that had taken place under the orders of sequen­tial pres­id­en­tial admin­is­tra­tions. The commit­tee’s caution engendered cooper­a­tion with the agen­cies amid an already bi-partisan consensus for reform.

In the years that followed, Congress estab­lished perman­ent select intel­li­gence commit­tees to over­see intel­li­gence activ­it­ies and passed the Foreign Intel­li­gence Surveil­lance Act, which placed domestic elec­tronic surveil­lance for national secur­ity purposes under judi­cial super­vi­sion for the first time. A legis­lat­ive charter limit­ing the invest­ig­at­ive powers of the FBI failed, however, after Attor­ney General Edward Levi issued Justice Depart­ment guidelines serving that same purpose.

While these reforms certainly didn’t prevent every future intel­li­gence abuse and over­reach, there can be no doubt that they made the intel­li­gence agen­cies more delib­er­at­ive and account­able. The Church Commit­tee report warned that a new national secur­ity crisis would test its recom­men­ded reforms, and the terror­ist attacks of Septem­ber 11, 2001 have done just that. The 2013 leaks by National Secur­ity Agency contractor Edward Snowden revealed that the intel­li­gence commit­tees and the FISA Court had been compli­cit in expand­ing the intel­li­gence agen­cies’ power to collect excess­ive amounts of inform­a­tion about Amer­ic­ans not suspec­ted of any wrong­do­ing, shock­ing even members of Congress who voted on these author­it­ies. New ques­tions are now being asked not only about the conduct of the intel­li­gence agen­cies, but the compet­ence of the post-Church Commit­tee over­sight struc­tures to identify and curb abuses.

Dr. John Elliff, the Church Commit­tee’s domestic intel­li­gence task force leader, argued that while over­sight does­n’t prevent errant intel­li­gence activ­it­ies — it exposes them after the fact — the result­ing criti­cism creates a last­ing bureau­cratic chilling effect that inhib­its abuse. In short, this phenom­ena, called “anti­cip­ated reac­tion” means that an agency that gets in trouble will seek to avoid that trouble in the future.

Elliff, who went on to serve on the Senate Intel­li­gence and Judi­ciary Commit­tees as well as in intel­li­gence posi­tions within the FBI, CIA and Defense Depart­ment, describes the current over­sight system as “inad­equate.”

WATCH:

Elliff’s concerns regard­ing the expan­sion of the FISA Court’s role in approv­ing programs of mass surveil­lance, rather than indi­vidu­al­ized warrants as FISA origin­ally contem­plated, mirrors criti­cism from former FISA Court Judge James Robertson. Judge Robertson argued that the FISA Court has turned “into some­thing like an admin­is­trat­ive agency which make and approves rules for others to follow,” and that this role was outside the proper scope of the judi­ciary.

Schwarz agrees with Elliff that the post-Church Commit­tee intel­li­gence over­sight mech­an­isms have lost force over time, as compla­cency, polit­ics, admin­is­trat­ive rules imposed by the exec­ut­ive branch, as well as human nature, conspired to weaken congres­sional resolve to serve as an effect­ive check against abuse. Schwarz high­lights several reforms that could help Congres­sional commit­tee over­sight.

WATCH:

However, because so little is publicly known about how over­sight by intel­li­gence commit­tees and the FISA Court work in prac­tice, it is diffi­cult to know whether fixing prob­lems that lead to weaker congres­sional over­sight would really improve the results we receive from our intel­li­gence agen­cies. Asking the ques­tions, then, becomes just as import­ant as find­ing solu­tions. It is more import­ant than ever to start eval­u­at­ing what is needed to create mean­ing­ful and last­ing intel­li­gence over­sight.

The U.S. has rein­i­ti­ated milit­ary engage­ment in Iraq and star­ted a new one in Syria. The pres­id­ent and intel­li­gence offi­cials have acknow­ledged this milit­ary inter­ven­tion was neces­sary because the intel­li­gence agen­cies were slow to recog­nize the grow­ing threat the Islamic State posed to the U.S. Rigor­ous over­sight is essen­tial to ensur­ing our intel­li­gence agen­cies oper­ate at peak effi­ciency and effect­ive­ness.

Last year, Schwarz and Elliff joined 13 other former Church Commit­tee staff members in call­ing for a new compre­hens­ive exam­in­a­tion of the intel­li­gence agen­cies. This exam­in­a­tion must certainly include an eval­u­ation of how we can exist­ing strengthen over­sight struc­tures or whether new mech­an­isms need to be created.

Watch Schwar­z’s and Elliff’s full inter­views here and here.  Read Schwar­z’s and Elliff’s full tran­scripts here and here.