Skip Navigation

A Failure to Protect Our Rights

President Obama said Americans shouldn’t just trust he is “doing the right thing" on surveillance because we have congressional and judicial oversight. Recent FISA Court documents and a hindered Senate investigation are proving otherwise.

Published: March 17, 2014

Cross­pos­ted from Al Jazeera Amer­ica.

Two seem­ingly unre­lated news items last week demon­strate just how broken the over­sight of the nation’s intel­li­gence agen­cies is. On March 11, Dianne Fein­stein, chair­wo­man of the Senate Intel­li­gence Commit­tee, denounced Cent­ral Intel­li­gence Agency inter­fer­ence with a congres­sional invest­ig­a­tion. That even­ing, The New York Times disclosed a secret decision of the Foreign Intel­li­gence Surveil­lance Court that vastly expan­ded intel­li­gence agen­cies’ access to Amer­ic­ans’ personal inform­a­tion.

The Senate Intel­li­gence Commit­tee (along with its coun­ter­part in the House) and the Foreign Intel­li­gence Surveil­lance Act (FISA) court were set up to control the intel­li­gence agen­cies in the wake of post-Water­gate revel­a­tions of their over­reach. At the time, Congress recog­nized the need for effect­ive intel­li­gence oper­a­tions but under­stood the threat such shad­owy activ­it­ies posed to Amer­ican demo­cracy and indi­vidual liber­ties. The FISA court and intel­li­gence commit­tees were supposed to be bulwarks against the dangers of secret spying programs.

The effect­ive­ness of these insti­tu­tions has often been debated, but their short­com­ings are now clear. The United States’ response to the 9/11 attacks has pushed them beyond the break­ing point, and the inter­fer­ence by the CIA that Fein­stein brought up in her speech show how easily legis­lat­ive checks can be thwarted by intel­li­gence agen­cies — and how Congress repeatedly gives in.

As shock­ing as Fein­stein’s public attack on the CIA might have seemed, it’s even more troub­ling to think about all the times the agency interfered with congres­sional over­sight without so much as a public peep from her or her colleagues. Her commit­tee is invest­ig­at­ing the CIA’s inter­rog­a­tion and deten­tion programs — also known, in layman’s terms, as torture. But rather than insist that the CIA turn over relev­ant docu­ments so the Senate could conduct its probe inde­pend­ently, Fein­stein agreed that staff would review docu­ments in a computer facil­ity set up by and at the CIA. This unusual arrange­ment left commit­tee vulner­able to monit­or­ing and under­mined its abil­ity to conduct an unim­peded review. To offset this risk, the CIA pledged that it would not look at the computers used by the invest­ig­a­tion’s over­seers except for tech­nical reas­ons.

But it became clear that the agency was inter­fer­ing when docu­ments began disap­pear­ing from the data­base in 2010. The CIA apolo­gized and prom­ised not to remove docu­ments again. Then when Senate staffers got their hands on a truly explos­ive docu­ment, a review ordered by then–­CIA chief Leon Panetta that suppor­ted the Senate commit­tee’s conclu­sion of “signi­fic­ant CIA wrong­do­ing,” the agency moved to protect itself, breach­ing, once again, the supposedly secure computers and remov­ing docu­ments. Yet again, Fein­stein didn’t call out the agency for its illegal actions. She went public only upon learn­ing that the CIA had not just broken into the computers again — this time to search the work and internal commu­nic­a­tions of its over­seers — but also had asked the Justice Depart­ment to launch a crim­inal probe into Senate staff.  

Iron­ic­ally, Fein­stein defen­ded the commit­tee’s staff by point­ing to a previ­ous CIA action that hampered over­sight: the destruc­tion of tapes of inter­rog­a­tions reques­ted by Sen. Jay Rock­e­feller, D-W.Va., then the chair of the commit­tee. Of course, it was Congress that let the agency get away with this extraordin­ary destruc­tion of evid­ence, perhaps leav­ing the impres­sion that it wasn’t will­ing to act when its author­ity was threatened. Notably, more than a year after its invest­ig­a­tion was completed, Fein­stein’s commit­tee still hasn’t released its report on alleged torture by the CIA in its inter­rog­a­tions.

Raw deal

So much for Congress’ keep­ing tabs on what the CIA is doing with its vast powers and resources. What about the courts? Regu­lar federal courts rarely review intel­li­gence oper­a­tions conduc­ted by the CIA or the National Secur­ity Agency. But the special FISA court set up to over­see the NSA hasn’t served as much of a check either.  

Last year the FISA court was revealed, thanks to leaks from Edward Snowden, to have signed off on a program that collects records of prac­tic­ally all tele­phone calls made in the United States, as well as one that scoops up e-mail records. Accord­ing to the latest story, in 2001 the court issued a ruling, known as the Raw Take order, setting aside rules meant to prevent the NSA from shar­ing irrel­ev­ant personal inform­a­tion about inno­cent Amer­ic­ans.

One could go numb poring through all the acronyms and legal­isms of what the court did and why. Perhaps the best way to under­stand the court’s decision is by way of analogy. The NSA claims that it collects truck­loads of inform­a­tion to build a haystack in which to search for needles relat­ing to terror­ism but that it looks only at the relev­ant needles of inform­a­tion. Amer­ic­ans need­n’t worry, the NSA claims, because it’s inter­ested only in inform­a­tion about bad guys and not ordin­ary people. But the FISA court decision allowed the NSA to look at and share with other intel­li­gence agen­cies not just the needles but the entire haystack of inform­a­tion. Small wonder that intel­li­gence offi­cials consider the ruling a mile­stone in the history of Amer­ican spying and privacy law.        

Do the right thing

Pres­id­ent Barack Obama hasn’t seen fit to chas­tise the CIA for its actions, and it has been repor­ted that the White House blocked Senate access to some 9,000 docu­ments. He has vigor­ously defen­ded the NSA, often rely­ing on the supposedly rigor­ous check that Congress and the FISA court provide. In his first remarks about Snowden, Obama said Amer­ic­ans didn’t need to just trust that he was “doing the right thing … because we’ve got congres­sional over­sight and judi­cial over­sight.” If people can’t trust the pres­id­ent or Congress or federal judges to uphold the law, Obama said, “we’re going to have some prob­lems here.” Unfor­tu­nately, these stor­ies show there are defin­itely some prob­lems here.

The secret court in which the intel­li­gence agen­cies are almost always the only advoc­ates does­n’t work to hold the spies in check. The court almost always sides with the govern­ment; in the last 33 years, it turned down surveil­lance requests just 0.03 percent of the time. The congres­sional intel­li­gence commit­tees seem forever behind the curve and intim­id­ated. Yet the Amer­ican people are told that these two insti­tu­tions will protect their rights. It’s pretty obvi­ous they won’t.   

Faiza Patel is co-director of the Liberty & National Secur­ity Program at the Bren­nan Center for Justice at NYU Law School. She focuses on U.S. coun­terter­ror­ism policy, racial and reli­gious profil­ing, human rights and human­it­arian law, chem­ical weapons and inter­na­tional law.

Photo by SenRock­e­feller.