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Rethinking Intelligence: Interview with Dr. John Elliff

Dr. John Elliff was the domestic intelligence task force leader for the Senate Select Committee on Government Activities with Respect to Intelligence Activities, better known as the “Church Committee,” after its Chairman, Senator Frank Church.

Published: July 10, 2014

Inter­view Tran­script

Dr. John Elliff was the domestic intel­li­gence task force leader for the Senate Select Commit­tee on Govern­ment Activ­it­ies with Respect to Intel­li­gence Activ­it­ies, better known as the “Church Commit­tee,” after its Chair­man, Senator Frank Church. He later held posti­tions in the Cent­ral Intel­li­gence Agency, the Defense Depart­ment, and the Federal Bureau of Invest­ig­a­tion, and served on the staff of the Senate Intel­li­gence and Judi­ciary Commit­tees. He is the author of Reform of FBI Intel­li­gence Oper­a­tions (Prin­ceton Univer­sity Press, 1979).

Mike German, a Fellow at the Bren­nan Center for Justice at NYU Law School, inter­viewed Dr. John Elliff on July 10, 2014. The follow­ing is an edited tran­script of that inter­view.


Q:  Hi, my name is Mike German. I’m a fellow with the Bren­nan Center for Justice at NYU Law School, and today I’m with Dr. John Elliff. Dr. Elliff has spent nearly four decades study­ing, over­see­ing, invest­ig­at­ing and work­ing within the intel­li­gence community. Dr. Elliff, you were a staff member to the Church Commit­tee and later to the Senate Intel­li­gence Commit­tee and the Senate Judi­ciary Commit­tee. You held posi­tions in the FBI, the CIA, the Depart­ment of Defense, so you have a wealth of exper­i­ence on these issues. Why don’t we start at the begin­ning? What was your role on the Church Commit­tee and what did you find?

ELLIFF:  My posi­tion was domestic intel­li­gence task force leader. We had a staff task force composed of six or seven attor­neys. I was not an attor­ney. I was a polit­ical science professor who had been writ­ing about the Depart­ment of Justice, and most recently focus­ing on FBI issues. And I came a bit late in the process, at the end of the academic year. This was 1975. We had just exper­i­enced the dynam­ics of Water­gate and a pres­id­en­tial resig­na­tion. The Viet­nam War had just finally come to an end, and that whole exper­i­ence, the combin­a­tion, had created a polit­ical envir­on­ment in Wash­ing­ton – the post-resig­na­tion Demo­cratic congress over­whelm­ingly elec­ted in 1974, they were prepared to take on the task of examin­ing issues that had simmered all through Water­gate and were now ready to be looked at by a special commit­tee. Congress didn’t have intel­li­gence commit­tees at that time. My job as task force leader was to try and focus our efforts on a number of things. First of all, getting and examin­ing govern­ment docu­ments. Second, inter­view­ing witnesses, both former offi­cials and some­times people who were the victims of what the govern­ment had been doing. We prepared present­a­tions to the members. We organ­ized hear­ings, both closed hear­ings and public hear­ings. We advised the members on recom­mend­a­tions as to new policies, new laws, and finally we produced extens­ive reports. The reports of the Church Commit­tee prob­ably consti­tute the largest volume of public­a­tion from any congres­sional commit­tee in a one-year period. It’s an extraordin­ary resource for students of the intel­li­gence community.

Q: And what did you find? Is there some­thing about the intel­li­gence activ­it­ies that pose a threat?

ELLIFF: I think those are two separ­ate ques­tions. What did we find? Our find­ings of our task force focused on the FBI, and we were look­ing at the FBI essen­tially from before World War II until basic­ally the last year or two, when many programs had been termin­ated during the Water­gate period. And when we looked at the FBI, we found some­thing that I don’t think any of us fully expec­ted to see. And yes, a number of us had been crit­ical of the FBI, had raised issues about the FBI, but no one, certainly none of the members of our commit­tee, had any idea of the FBI’s system­atic covert program for combat­ing what in those days was called “subver­sion,”- subvers­ive activ­it­ies that would threaten the internal secur­ity of Amer­ica, start­ing with Commun­ism and Fascism in the 30’s, proceed­ing through the war, through the McCarthy era, into the turbu­lent 60’s.  And it wasn’t always against the Left. The Ku Klux Klan in the south, when the terrible murders occurred in the early 60’s became the target. The target of what? What kind of intel­li­gence activ­it­ies were we talk­ing about here? It was not just the collec­tion of intel­li­gence. What the FBI developed was a whole series of covert tactics that didn’t involve arrest­ing people and taking them to court and present­ing the evid­ence in court- but involved disrupt­ing organ­iz­a­tions, discred­it­ing groups, basic­ally because they were propagat­ing subvers­ive ideas – Commun­ist ideas, Commun­ist-influ­enced ideas. There’s no ques­tion that some­times in the late 60’s there was viol­ence by anti-war groups, certainly by the Klan in the early 60’s. But the Bureau’s concern to both was to capture the full range. In the later years it was called “the New Left” as the threat, and that reached out to the envir­on­mental move­ment, to the women’s move­ment. And all of this became not only the grist for extens­ive files on the pure exer­cise of First Amend­ment rights, but also the compil­a­tion of what was called a “secur­ity index.” This was born in the World War II and Cold War period as a list of people to be roun­ded up in case of a crisis in inter­na­tional rela­tions, a war, a nuclear exchange – people could imagine, well who do you need to round up? And the criteria for round­ing up basic­ally was disloy­alty to Amer­ica, not whether someone was part of a terror­ist ring or an intel­li­gence ring by the Sovi­ets or some­thing else. So this was a story that needed to be told. We told it in public hear­ings, we told it in reports and we provided the raw mater­ial for multiple books that contin­ued over the years. That’s what we found. Now, does that mean that intel­li­gence per se auto­mat­ic­ally means intel­li­gence like the covert FBI system that we invest­ig­ated? No, I don’t think so. Intel­li­gence as a govern­ment func­tion is less suscept­ible to abuse if you’re look­ing glob­ally, than those func­tions of govern­ment that use force. So if you’re talk­ing about milit­ary and police func­tions that use force and viol­ence, that take people off the streets, put them in jail, that kill people – all of that is the cent­ral core and we designed a consti­tu­tional system, checks and balance to ensure that those powers of govern­ment are not misused. Those are the ones that are the most danger­ous. To the extent that intel­li­gence is support­ing efforts to use viol­ence to main­tain the power of a polit­ical regime against its polit­ical oppon­ents, against dissent, then you’re talk­ing about intel­li­gence that is extraordin­ar­ily the source of abuse. But the fact that intel­li­gence has to be done in secret does­n’t mean that it’s neces­sar­ily more suscept­ible to abuse. Intel­li­gence must be secret and can in fact, and indeed, I believe, does today, help prevent the hysteria, the public hysteria that can fuel abuses, as in the McCarthy era, or in the imme­di­ate post-9/11 envir­on­ment by ensur­ing that we have the intel­li­gence to prevent the terror­ist attacks that other­wise, if carried out, would result in the terror­ist’s object­ives being fulfilled. And it is creat­ing fear far beyond the loss of life that occurs in the partic­u­lar terror­ist act. So that’s how I’ve looked at the suscept­ib­il­ity of intel­li­gence.

Q: So where’s the line and what’s the appro­pri­ate mission? Obvi­ously when you examined the FBI, their improper activ­it­ies were fall­ing short of viol­ence. They weren’t actu­ally going and grabbing civil rights lead­ers off the street and making them disap­pear. So what is the appro­pri­ate mission and where do you draw that line?

ELLIFF: Well you start with what are the tradi­tional func­tions of intel­li­gence for West­ern demo­cra­cies, any demo­cracy – the first is support. It’s milit­ary. The milit­ary is the main source of national power and so the milit­ary tends to have the greatest influ­ence on intel­li­gence . They need intel­li­gence both in the war and to prepare for war. Second is foreign policy. Foreign policy needs intel­li­gence so that the pres­id­ent under­stands the world. Yes, he ought to under­stand the world from read­ing academic stud­ies and the news­pa­pers and the lobby groups and all of that, but the State Depart­ment, the pres­id­ent, they need to have that under­stand­ing. So those two core missions of the intel­li­gence are vital and are broadly under­stood and accep­ted. The prob­lem comes when intel­li­gence is used to deal with domestic prob­lems. And it’s there that intel­li­gence is most read­ily accep­ted by the public and most clearly neces­sary, when it’s used to focus on those who are commit­ting or going to commit crimes. Congress, the states have passed laws that define what is accept­able beha­vior, and justify arrest, impris­on­ment. So whether you’re the New York City Police Depart­ment trying to figure out how to manage its inform­ants and its under­cover oper­a­tions within the City to prevent the terror­ist attacks that would create mass hysteria and fear, same is true nation­ally for the FBI around the coun­try to deal with terror­ism and frankly the Drug Enforce­ment Admin­is­tra­tion and other agen­cies with narcot­ics traf­fick­ing, with organ­ized crime – all law enforce­ment really needs to have intel­li­gence, which is an under­stand­ing of the threats of crim­inal beha­vior and how best to create defens­ive meas­ures, secur­ity meas­ures, whether it’s at banks or at public events.

Q: So obvi­ously during that era, the Church Commit­tee found that the FBI was target­ing, as you said, groups that were merely express­ing their polit­ical ideas and engaged in First Amend­ment activ­it­ies. Today we have systems of bulk collec­tion that aren’t targeted, that actu­ally, target large groups of people, entire communit­ies, the entire coun­try, with some of the meta-data collec­tion. Do you have the same concerns about – does that bulk collec­tion have the same impact or similar impact on First Amend­ment rights that inap­pro­pri­ately targeted intel­li­gence activ­it­ies against civil rights lead­ers for example?

ELLIFF: No, I don’t think it does. We are at a point where tech­no­logy has enabled us to do some­thing that, if it had been at the disposal of the FBI 40 years ago, 50 years ago, then it would have been used and would have been used to fuel the misuse of that intel­li­gence. But today, simply having that intel­li­gence data­base, the threat really comes from what is the risk of its misuse, as opposed to its use for legit­im­ate law enforce­ment, foreign intel­li­gence and poten­tially, at the border­lines, milit­ary. An example would be the amount of global travel by folks who end up in war zones, and the rela­tion­ships of folks in war zones, whether it was Iraq or Afgh­anistan, Syria, wherever, to the United States, in a glob­al­ized world. So the bulk collec­tion was justi­fied as a way of deal­ing with the glob­al­ized terror­ist threat using up-to-date tech­no­logy. Now, the prob­lem was that it touched every­body. It was not focused on the areas which were most likely to get – if you’re using human intel­li­gence you have your human sources placed in loca­tions, watch­ing people, talk­ing to people, who are, based on your analysis, most likely to be the setting for crim­inal activ­ity, terror­ist plots whatever. Bulk collec­tion wasn’t that. The para­dox­ical effect of the disclos­ure of bulk collec­tion was that by touch­ing every­one, it means that every­one in Amer­ica is now aware that it DOES touch them. So we have had this unique, during this past year, this unique conflu­ence of the liber­tarian right and the civil liber­ties community behind restric­tions and controls, that result from the fact that bulk collec­tion touches so many people. It then reminds every­body that there IS this risk of the polit­ical misuse, that there IS this risk to the exer­cise of free speech and dissent whether you are dissent­ing from the right or dissent­ing from the left.

Q: And I see two prob­lems with it. One as you said, the risk that it creates but also the suppress­ive effect that might have on First Amend­ment rights. But also do you see that it, as the debate has unfol­ded, an impact on the public support for intel­li­gence programs?

ELLIFF: I’ve been trying to watch this fairly care­fully- I’ve been out of govern­ment for several years. But the sense I have is that the revel­a­tions with respect to collec­tion of domestic commu­nic­a­tions metadata, which is the tech­nical term, essen­tially, what was exposed was the fact that the govern­ment collects every phone number that’s called by every other phone number in the United States – that that has become the focus of public congres­sional and edit­or­ial debate. The fact that there has been such collec­tion abroad has not had the same impact within the United States. There is MUCH greater support for the United States using tech­niques such as this inter­na­tion­ally, rather than at home. And this reflects the nature of our consti­tu­tional system, the idea that the juris­dic­tion of the Consti­tu­tion and the Bill of Rights is really to protect the func­tion­ing of our consti­tu­tional demo­cracy – and that yes there are norms of inter­na­tional human rights that we have to respect. And partic­u­larly with the European community, the fact that we have not only polit­ical diplo­matic diffi­culties but seri­ous economic, commer­cial interests that are affected by disclos­ures, that we are intrud­ing or perceived as intrud­ing into the privacy of foreign­ers. And that has resul­ted in an extraordin­ary change in national policy under Pres­id­ent Obama, because early this year he issued a direct­ive on the collec­tion of commu­nic­a­tions intel­li­gence that basic­ally said to the world, we are not going to use this bulk collec­tion method indis­crim­in­ately. Now, this wasn’t respond­ing to a call by the Amer­ican people to restrict collec­tion abroad. Instead it was respond­ing to the real­it­ies of the inter­na­tional envir­on­ment where you have to deal with allies, you have to deal with Amer­ican commer­cial interests that are global. So that’s the idea that I have about really, the differ­ent impact of at home versus what we do abroad.

Q: And most of the debate at home has centered on that National Secur­ity Agency, the NSA. Does the NSA’s involve­ment in this type of partic­u­larly domestic collec­tion pose prob­lems differ­ent from the FBI’s, CIA?

ELLIFF: Abso­lutely. NSA is primar­ily an instru­ment of the U.S. milit­ary. People need to under­stand that. That’s where it gets most of its budget, because the collec­tion of what’s called signals intel­li­gence, which includes all kinds of elec­tronic commu­nic­a­tions and not just commu­nic­a­tions, that enables the U.S. milit­ary to deal with the battle­field. You have today NSA wear­ing several hats. It is the home of U.S. cyber command. So to the extent that there is a cyber battle­field, NSA is the center of the U.S. milit­ary oper­a­tions and plan­ning. And beyond that, NSA has, tradi­tion­ally because of its expert­ise in how to inter­cept commu­nic­a­tions, the expert­ise in how to secure our own commu­nic­a­tions. So it is a commu­nic­a­tions secur­ity agency. All these bound up with tech­no­lo­gies that are extraordin­ar­ily complex, diffi­cult not only for over­seers and Congress and the exec­ut­ives but within NSA itself, diffi­cult to under­stand, as has surfaced in some of the court opin­ions that have now been declas­si­fied – that NSA itself had to tell the court, well, we really didn’t know what we were doing. And that makes it extremely diffi­cult. They have the world’s greatest inform­a­tion tech­no­logy, resources and expert­ise but the chal­lenge for policy-makers, and some­times that some­times means lead­er­ship of their own agency, to try and control this is diffi­cult. And it reflects the nature of the world we’re in, where inform­a­tion tech­no­logy drives so much of what’s in our lives today.

Q: The Church Commit­tee’s work led to a series of reforms, one of which was creat­ing select intel­li­gence commit­tees in the congress to perform the over­sight func­tions that you’ve mentioned. And you in fact went to the Senate Intel­li­gence Commit­tee for the next 15 years and served there until 1992. How would you rate its early perform­ance when you were there?

ELLIFF: I think the Commit­tee did a pretty good job. We’re talk­ing about the Carter, Reagan and first Bush admin­is­tra­tions. So you have to put your­self back – what were the big issues of that period? Let’s start with the fall of Iran and the inva­sion of Afgh­anistan, the end of Jimmy Carter’s admin­is­tra­tion. Contin­ued and begin­ning there through­out Reagan, arms control nego­ti­ations with the Sovi­ets. And beyond that towards the end of the period, the first Gulf War. So think of those as the high points of U.S. national secur­ity, if you will- polit­ical, milit­ary diplo­matic issues in the inter­na­tional scene. What the Senate Commit­tee did on a purely bipar­tisan basis – we had Repub­lic­ans who were more moder­ate than conser­vat­ive Demo­crats who were on the Commit­tee – so it was a mix that pretty much held together through­out that period. The Commit­tee gave the Senate a coun­ter­weight to the Pres­id­ency on these issues during this period. The Senate had to ratify arms control treat­ies. Repub­lic­ans in partic­u­lar didn’t trust Jimmy Carter. Would the Intel­li­gence Commit­tee be able to find out all the means we used to monitor compli­ance with arms control treat­ies, get down into the weeds, and have suffi­cient cred­ib­il­ity so that the Senate would say, okay, when it comes to monit­or­ing compli­ance, we’re confid­ent we know, inde­pend­ent of what the Pres­id­ent’s bottom line is, what the strengths and weak­nesses are of monit­or­ing – whether it was deal­ing when Cent­ral Amer­ica, lots of pulling and haul­ing over Nicaragua, not always unan­im­ous, but always a process in which the Commit­tee was able to keep the Senate informed of what was happen­ing. And if things got off track, like Iran Contra, being able to form a consensus on where to go in the future. And in the first Gulf War, partic­u­larly, when people were skep­tical of whether war was justi­fied, being able to hold the hear­ings. That’s one thing.

Perform­ance meas­ure­ment. Perform­ance meas­ure­ment by the Commit­tee during this period focused really on the high cost space systems that are managed by the National Recon­nais­sance Office, big chunks of the taxpay­ers’ money, and the Commit­tee focused on making sure that the perform­ance of those systems was some­thing that they could have confid­ence in or that they could signi­fic­antly affect to improve and deal with the issues. One of the most extraordin­ary phases in that period was right after the Gulf War. The Berlin Wall had come down and Robert Gates was the new director of cent­ral intel­li­gence. He’d been turned down the first time right after Iran Contra because the Iran Contra invest­ig­a­tions were still under way, people didn’t know what Bob’s role was. But Mr. Gates had a unique approach to managing the intel­li­gence community. In addi­tion to his own intel­li­gence community staff elements he turned to the Senate Intel­li­gence Commit­tee’s staff and members for advice on how to reor­gan­ize the intel­li­gence community, know­ing that it was bipar­tisan, that it was respec­ted in the intel­li­gence community, and that in many respects we had inde­pend­ence that no one in the exec­ut­ive branch could have- to bring that together.

Finally I’ll say a word about the civil liber­ties issues that we had in that period. The Commit­tee was unan­im­ous in support­ing the Foreign Intel­li­gence Surveil­lance Act, taking it to the floor where there was one “no” vote, compared to the House where the Repub­lic­ans on ideo­lo­gical grounds basic­ally said, a new court should not be created to check what should be the pres­id­ent’s author­ity. And that resul­ted in a great debate in the House. But on the Senate side, the Commit­tee Repub­lic­ans were on board. Largely this was due to the fact that the proposal origin­ated under Pres­id­ent Gerald Ford and that during the Church Commit­tee period, the Repub­lic­ans on the Commit­tee were support­ing Pres­id­ent Ford’s approach in contrast to a more liberal approach led by a sub-commit­tee under later to be vice pres­id­ent Walter Mondale, who basic­ally said we don’t need a special court, we’ll just use the regu­lar federal courts for this chal­lenge. Well, that helped develop what became the consensus. Then, under the Reagan admin­is­tra­tion – the Reagan admin­is­tra­tion wanted two things from Congress in the way of legis­la­tion. They wanted the CIA to be exempt from the Free­dom of Inform­a­tion Act and they wanted a law making it a crime to reveal the iden­tit­ies of intel­li­gence agents, partic­u­larly CIA case officers func­tion­ing abroad under cover. Sen. Gold­wa­ter wanted to keep a consensus on the commit­tee. We had liberal Demo­crats, conser­vat­ive Repub­lic­ans – the way we do this, he felt, was to tell the admin­is­tra­tion, and partic­u­larly CIA director Casey, you have your best lawyer sit down with the Amer­ican Civil Liber­ties Union’s best lawyer, and you lock them in a room and you tell them to come out with some­thing they both agree on and then we’ll consider it at the Commit­tee. And that’s exactly what happened. One of the best ACLU litig­at­ors argues before the Supreme Court, one of the wisest CIA attor­neys that I ever met, did in fact nego­ti­ate a pack­age. And the same thing, although not quite as dramat­ic­ally occurred – that was for the Free­dom of Inform­a­tion Act exemp­tion – for a limited of category of oper­a­tional files that were exempt from search. And the same was true of the agent iden­tit­ies crim­inal stat­ute which was limited to disclos­ures as part of a pattern of disclos­ure really aimed at one public­a­tion that had made it its busi­ness outing the iden­tit­ies of CIA case officers abroad. Then when it came to the FBI, in the late 80’s, as a result of a Free­dom of Inform­a­tion Act suit, the Justice Depart­ment disclosed that the FBI had conduc­ted a nation­wide invest­ig­a­tion of a group called The Commit­tee in Support of the People of El Salvador, and protest­ing U.S. policy in Cent­ral Amer­ica. That invest­ig­a­tion had been shut down by the Justice Depart­ment, and then it was made public. Well, imme­di­ately the commit­tee chair­man, David Boren, later pres­id­ent of the Univer­sity of Oklahoma, a very conser­vat­ive Demo­crat, voted for Robert Bork for the Supreme Court. [He] calls in new director William Sessions of the FBI, says, you gotta get to the bottom of why this happened, was this a plot by the Reagan admin­is­tra­tion to silence its crit­ics? So the FBI inspec­tion divi­sion is put to work to do a massive report on what happened. That comes to the commit­tee, the director comes back to testify, he announced that he has found that this was a matter of empire-build­ing by mid-level super­visors in the FBI who had used flawed intel­li­gence sources to persuade their bosses that this was a big threat connec­ted to rais­ing money for terror­ists in El Salvador, and that as a result he was discip­lin­ing and demot­ing these super­visors. Well, that seemed like the system worked. Yes, it was after the fact. We didn’t catch it during the time it was under way. The Justice Depart­ment system caught it and termin­ated it.

But I felt when I left the commit­tee in 1992 that it was moving along. It was on the verge the follow­ing year of expand­ing the Foreign Intel­li­gence Surveil­lance Act to include searches which had been conduc­ted under the Reagan and Bush admin­is­tra­tion without a court order under claims of inher­ent pres­id­en­tial power. So that was brought to an end in 1993.

Q: And later in your career, did your idea, did your opin­ion change?

ELLIFF: It did on the civil liber­ties issues. I came back to the Senate a month before 9/11, to help the Senate Judi­ciary Commit­tee deal with what the public and others thought was a flaw in the FBI’s coun­ter­in­tel­li­gence program that had produced the Hanssen case- if you recall Bob Hanssen, who I had in fact met in my over­sight role. And he had been part of brief­ings teams. And so I knew this guy, and here he was, all this time, a Soviet spy. So well, within less than a month, 9/11 hit. And the Senate lead­er­ship did not turn to the Senate Intel­li­gence Commit­tee to deal with the admin­is­tra­tion’s propos­als that became the Patriot Act. Instead, they turned to the Judi­ciary Commit­tee, under Senator Leahy and Senator Orrin Hatch. Now, Leahy and Hatch had an excel­lent bipar­tisan rela­tion­ship. And we sat down at the table with the admin­is­tra­tion lawyers. And in touch through our chief coun­sel, with the civil liber­ties groups, to nego­ti­ate a series of changes in the admin­is­tra­tion proposal that were designed to tighten up the safe­guards. I didn’t see the Senate Intel­li­gence Commit­tee show­ing any interest in that dimen­sion of our work. They reques­ted certain amend­ments that clari­fied, in my view, and expan­ded the CIA’s author­ity to collect intel­li­gence about Amer­ic­ans. I thought that during this – during the period from '92 until '01, the interest in civil liber­ties issues had appeared to decline, and maybe there were a lot of other things that were going on as well. After the first Patriot Act round, the Senate Intel­li­gence Commit­tees formed a joint commit­tee to look at the perform­ance of the Intel­li­gence Community before 9/11 ‑‑ created a joint commit­tee. It produced a report. But the Congress wanted more. And that’s why we ended up with the 9/11 Commis­sion, doing essen­tially the same thing, but doing it with a group of distin­guished outsiders who would have the greater cred­ib­il­ity. And they came up with a proposal for a Privacy and Civil Liber­ties Over­sight Board that would be inde­pend­ent, that would help make sure that the reac­tion to 9/11 did not result in over­re­ac­tion in invad­ing consti­tu­tional rights. And unfor­tu­nately, that idea, which later surfaced in legis­la­tion, was not fully imple­men­ted until a year ago. A little over a year ago.

Q: Okay. Now, the intel­li­gence enter­prise has grown quite a bit since you examined it with the Church commit­tee. Almost five million employ­ees and contract­ors with secur­ity clear­ances. $70 billion a year oper­a­tion. And with so much activ­ity and such secrecy surround­ing it, do the Congres­sional commit­tees have enough access or resources to get a true read on what it is the Intel­li­gence Community is doing?

ELLIFF: This is an inter­est­ing ques­tion, because during my 15 years there, I felt that we got the inform­a­tion we needed, and that our members got the inform­a­tion we needed. We did so because the agen­cies saw it as being in their interest to ensure that we knew what we needed to know. You know, I can remem­ber briefers on arms control issues coming and saying at the end, after they’d made this brief­ing, “You need to ask one more ques­tion. You forgot to ask, 'What else is it that we should know besides what you’ve presen­ted?'” [I] respec­ted that atti­tude. Felt that it was wide­spread, that there was an under­stand­ing in those years, after the – with the creation of new intel­li­gence commit­tees, that if they under­stood that they would be help­ful when it came to budget, they would be help­ful when it came to policy issues like Free­dom of Inform­a­tion Act issues, CIA agents’ names issues, and the diffi­culty is that does­n’t always happen. The agen­cies do not always see it as being in their interest to keep the commit­tees fully and currently informed. And some­times it appears from the outside at least, that lead­ers of the exec­ut­ive branch, certainly after 9/11, when it came to certain NSA activ­it­ies, the idea was just tell a hand­ful of Congres­sional lead­ers in the Vice Pres­id­ent’s office. And that’s not educat­ing commit­tees so that they have full staff support to under­stand what’s going on. The abil­ity to under­stand the tech­nical issues is as great an obstacle today as the reluct­ance of agen­cies to see that it is in their interests to ensure that the over­sight commit­tees are educated. And the tech­no­logy is hard to under­stand in the exec­ut­ive branch as well as from the Hill. At any rate though, on the ques­tion of over­sight access, one other point. And that is- secrecy is some­times help­ful to the Amer­ican public. And that comes partic­u­larly to the taxpay­ers. Most Defense Depart­ment money is spent in the open. That means that constitu­en­cies all over the coun­try have the abil­ity and govern­ment defense contract­ors, the abil­ity to go to their congress­men, and say “Protect these programs. Promote these programs. Build the budget.” So when the Pres­id­ent, and the Secret­ary of Defense come in and say, “We’ve got to protect the budget, we’ve got to keep controls,” then you have the combin­a­tion of constitu­ency pres­sure and the combin­a­tion of the public rhet­oric of saying, “We have to support the Amer­ican milit­ary.” We don’t have that on the intel­li­gence side. The intel­li­gence budget had, at least in my exper­i­ence, the poten­tial of being able to make cuts both by the Pres­id­ent and his budget process, and by the commit­tees and the appro­pri­ations process, without having to face that demo­cratic – but terribly inef­fi­cient and costly – way of having to do busi­ness. So again, it’s kind of a para­dox. But there are other interests than just open­ness.

Q: So now here we are, locked in another debate about the proper scope of intel­li­gence activ­it­ies, but the inform­a­tion that we have was actu­ally brought to us by a concerned insider who had leaked inform­a­tion, rather than through the work of the struc­tures that were built to check the intel­li­gence community.

ELLIFF: Made public.

Q: Made public.

ELLIFF: Not made known to the over­sight commit­tees.

Q: Right.

ELLIFF: The over­sight commit­tees struggled with legis­la­tion for several years with the secret program that Snowden made public.

Q: Oh, certainly. And because of the way that the inform­a­tion has come out through a whis­tleblower’s leaks, the perform­ance of those struc­tures – the intel­li­gence commit­tees in Congress, the Foreign Intel­li­gence Surveil­lance Court, is now as much a part of the debate as the intel­li­gence activ­it­ies them­selves. How do you feel their perform­ance has – how they have performed.

ELLIFF: Well, one of the concerns that some people have is that this is all after the fact. That there’s no indic­a­tion that the over­sight process ever stopped anything as it was going on. And I have two points on that. First of all, yes, almost all, not quite all, but almost all the stop­ping has been done – the role of over­sight has been to sort out the prob­lems after an expos­ure. Whether it’s a leak, whether it’s a FOIA lawsuit, whatever, that’s what happened with the CISPES invest­ig­a­tion. But as a polit­ical scient­ist, I learned in gradu­ate school and as a young professor that there was a pretty well estab­lished prin­ciple for under­stand­ing bureau­cra­cies called ‘anti­cip­ated reac­tion’. And that bureau­cra­cies, when they get in trouble, do not want to get in trouble again. And there­fore, if you – if some­thing is exposed and you create trouble for an agency, it seeks to avoid that kind of trouble. Again, and the result was that after 9/11, many people were concerned that our intel­li­gence agen­cies, as a result of the Church Commit­tee and other things, had become risk averse. That their anti­cip­a­tion of getting into trouble again had resul­ted in tying their own hands much more than even the laws required them to do, and there were some examples. And so the concern, for example, with respect to the FBI, was so great that some people at high levels were propos­ing that domestic intel­li­gence be removed from the FBI and that we adopt the Brit­ish model of having an MI5, a separ­ate domestic intel­li­gence agency, which Canada and Australia have also, using the Brit­ish model. So that was a concern that bureau­cra­cies would be too cautious as a result. And that means that when you’re expos­ing some­thing, you do think it has an impact and that it’s not just going to wear off. The other point though is that there were cases where the over­sight stopped some­thing. And the most dramatic and least known is when the Foreign Intel­li­gence Surveil­lance Act Court stopped NSA’s use of a partic­u­lar dimen­sion of its inter­na­tional collec­tion under what’s called Section 702. And basic­ally said, you are not able to – you are not comply­ing with the Consti­tu­tion. You are not comply­ing with the law. And you have to change this program. Forcing NSA and Justice Depart­ment lawyers to come up with one proposal after another, the court sent the first one back and said, “That’s not good enough.” All of this was happen­ing in secret. All of this was happen­ing a couple years before the story then became public with the opin­ions being declas­si­fied. So there have been cases where the system has worked, but I have to say that over­all, the system today is inad­equate. And the main prob­lem is tech­no­logy. The NSA disclos­ures have shown just how hard it is to do proper over­sight. Rather – whether from a court, whether from a Congres­sional commit­tee, even from within the exec­ut­ive branch. We have to remem­ber what happened over the last 10–12 years. In the early years after 9/11, the Bush Admin­is­tra­tion was proceed­ing unilat­er­ally with its NSA programs. There was a major leak to the New York Times in about 2006, 2007, that produced a massive reac­tion. Attor­ney General on the carpet, Congress chan­ging the Foreign Intel­li­gence Surveil­lance Act. Some of those changes were public, some of those changes were done in secret because the over­sight commit­tees were persuaded that you could­n’t disclose publicly. But that went forward on a piece­meal basis in reac­tion to one expos­ure after another. The court was given a whole new role. The FISA Court which was estab­lished to make case-by-case decisions on whether the facts with respect to a partic­u­lar target met the stand­ard estab­lished by the stat­ute, which was based on essen­tially Fourth Amend­ment values. Now, after the new laws were put in place, and this is five-six years ago, the court’s role is review­ing programs. Making an advis­ory opin­ion that the program is consti­tu­tional under the Fourth Amend­ment and legal under the stat­ute. Not look­ing case by case. So on this piece­meal basis, laws were passed, the FISA Court was given an entirely new role. And none of this was based on any kind of system­atic exam­in­a­tion of what the over­sight chal­lenge was. When you have a tech­no­logy that can be so compre­hens­ive, you just look at the differ­ence between the commu­nic­a­tions we were legis­lat­ing on in the 70s. These were phone calls and telexes and faxes. These were point- to-point commu­nic­a­tions. Nobody ever heard of a website, let alone being able to have vast distri­bu­tion for your e-mail. No one had the idea that you would be rely­ing on mobile phones that would go every­where and would give you a computer in your pocket that would have all the data. Now the Supreme Court’s begin­ning to recog­nize that, as its recent search and seizure decision on the search of phones incid­ental to an arrest. But it’s not clear to me at all that Congress, in react­ing to this or the court in react­ing to this has put in place an over­sight mech­an­ism to protect the Consti­tu­tional rights and civil liber­ties in this tech­no­logy age, that is adequate for the chal­lenge.

Q: And do you think secrecy is part of the prob­lem as well as the tech­no­logy?

ELLIFF: Not as much over the past year. It was. Now, people’s noses have been rubbed in the fact that there is tech­no­logy that is very diffi­cult to under­stand. These FISA, Foreign Intel­li­gence Surveil­lance Act court opin­ions that are unclas­si­fied on the Court’s website at the – they have certainly, I – although I get them cour­tesy of the website managed by a man named Steve After­good for the Feder­a­tion of Amer­ican Scient­ists. And Feder­a­tion of Amer­ican Scient­ists has a website on secrecy that is more user-friendly. [laughter] But this, if you’re an expert in this, then you can – if you plow through these things and try to think, “What are they saying here?” Not laying it out in a thou­sand pages but they are laying it out in just several hundred pages that are not easy to under­stand, but it’s there. And it tells you that this is the chal­lenge that we have in ways that we didn’t under­stand before Snowden made the domestic disclos­ures, which may not have been neces­sary, but certainly did come along.

Q: And now that they are public, the public can weigh in and encour­age their repres­ent­at­ives to make the changes they feel are neces­sary. What reforms to strengthen these over­sight mech­an­isms would you recom­mend?

ELLIFF: I have focused in on this Privacy and Civil Liber­ties Over­sight Board, which is a five-member board, three appoin­ted – three are Demo­crats and two Repub­lic­ans. I can’t remem­ber the exact report­ing. And they some­times disagree on those lines but not always. They’ve only been around for a little over a year. They were origin­ally proposed by the 9/11 Commis­sion and created as part of the Intel­li­gence Reform Act back 10 years ago. And for whatever reason, Pres­id­ent Obama, after his prede­cessor could not get around to figur­ing out how to appoint it – only the chair is full-time. The staff is tiny. But they have demon­strated in now two reports, that they can lay out for the public a coher­ent narrat­ive story of these complex tech­no­lo­gical issues. That means trans­lat­ing what’s in these horrible court opin­ions that’s hard to read into some­thing that the layman can logic­ally under­stand, and then make recom­mend­a­tions that are inde­pend­ent of the elec­ted interests of a Pres­id­ent or the Members of Congress. And in some respects, it’s similar to a system that I saw in Canada when we were – when I was on the Commit­tee Staff. Canada has an inde­pend­ent over­sight body that looks at their secur­ity service. And it’s appoin­ted – they’ve got three polit­ical parties in Canada, and each of the party lead­er­ships appoints people on this over­sight board. And they really impressed us as having- members and staff came and visited us – as having a seri­ous, inde­pend­ent look that was considered cred­ible by the polit­ical parties in Canada. And I’m not saying that the over­sight board in the United States is going to be like that. We don’t have a three party lead­er­ship in our Parlia­ment. We don’t have a Parlia­ment. But the abil­ity to have an inde­pend­ent look that is not bound by judges, to the judi­cial role or twist­ing the judi­cial role out of shape to turn judges into policy advisers, which is what they’ve done for the FISA Court, and not rely­ing on intel­li­gence over­sight commit­tees that are focused neces­sar­ily on the perform­ance of the community in meet­ing its milit­ary and diplo­matic needs, and on today’s diplo­matic crisis. So whether it’s Iraq or Syria or Ukraine, intel­li­gence commit­tees are going to be preoc­cu­pied by that. So that’s one of the mech­an­isms that I think could be seri­ously strengthened with perman­ent members, with a signi­fic­ant infu­sion of staff, and with the recog­ni­tion. Now, not every­body agreed with its second report on NSA’s collec­tion of inter­na­tional commu­nic­a­tions, but I’d have to say that it has not exposed the recent story over the week­end in the Wash­ing­ton Post, which disclosed raw e-mail commu­nic­a­tions among foreign­ers. This is going to have a tremend­ous impact over­seas. But within the U.S., it’s not as clear, because there weren’t examples of e-mails that were clearly by Amer­ic­ans, partic­u­larly by dissent­ing Amer­ic­ans, that got caught up in this massive collec­tion. So that’s an example of why a mech­an­ism like this would have public support, when it is not trying to deal with the whole ques­tion of intel­li­gence over­sight. There are other changes. I think it’s clear since 9/11, the PATRIOT Act, and through the legis­la­tion on NSA since then, that the Judi­ciary Commit­tees of both houses are going to have a signi­fic­ant role in these areas. Now, they don’t have the expert cleared staff that have the detailed expert­ise on the intel­li­gence agen­cies. They are used to oper­at­ing in public. They don’t have secure hear­ing rooms. They don’t have super secret clear­ances for all their staff. But when the issues are debated publicly, the Judi­ciary Commit­tees have the abil­ity to repres­ent a broader array of view­points. And the lead­er­ship of the Congress – Congress as a whole has recog­nized that. And has seen that this has to be a role that the Judi­ciary Commit­tees play. Just like the Armed Services Commit­tees plays with respect to milit­ary intel­li­gence in signi­fic­ant ways.

Q: I’m going to jump ahead just a little bit. You joined in a letter with a number of former Church Commit­tee staff, call­ing for a new special tempor­ary commit­tee to do that same kind of compre­hens­ive review of the intel­li­gence community. What would you have that new commit­tee look at? What would they focus on?

Elliff: Well, I truly believe that the tech­no­lo­gical chal­lenges are so great that that has to be at the top of their list. And the implic­a­tions of it, primar­ily for consti­tu­tional rights of Amer­ic­ans. First and Fourth Amend­ment. But also, I think – and since you see what’s happen­ing in the world, having to look at the inter­na­tional privacy and human rights dimen­sion as well, in ways that are more than the daily work of the Congres­sional Commit­tees can do. We had a differ­ent world in the 70’s. We were coming off of Water­gate and Viet­nam. We had a pent-up series of years since World War II when intel­li­gence had not been looked at at all by the Congress. Now we don’t have that prob­lem. What we have is a prob­lem of under­stand­ing the dimen­sions of the prob­lem and explor­ing new ways of think­ing about them that could include then a recom­mend­a­tion for strength­en­ing the Privacy and Civil Liber­ties Over­sight Board, of look­ing at the role of the Foreign Intel­li­gence Surveil­lance Court when it has this extraordin­ary advis­ory role that is distinct from the normal role performed by judges in issu­ing orders for wiretaps and searches and target­ing of other tech­niques. Whether the commit­tee is neces­sary to do what the Church Commit­tee did, which is to explain in public how and why intel­li­gence serves Amer­ican foreign policy, serves Amer­ican milit­ary, those are things that have become accep­ted, and that yes, it’s – there’s a lot more public than there was in the Church Commit­tee days about a National Recon­nais­sance Office that deals with the intel­li­gence collec­tion from space. That was a black program that no one could even mention the name of the agency, back in the days of the Church Commit­tee. So there is a lot that can be done and there are – not – very good resources avail­able, so I would put that on the list, and that is making sure that the public has a place that they can go to under­stand what the legit­im­ate missions of intel­li­gence are, and how import­ant they are.

Q: And are there metrics to meas­ure whether any of these programs actu­ally in the end make the nation safer?

ELLIFF: Some­times yes, some­times no. The primary metric that pres­id­ents like to use is “Has there been a terror­ist attack inside the United States?” So, Boston? Yeah, we had the first one. Appears to have been self-star­ted, not part of an inter­na­tional conspir­acy send­ing people in. We’ve abor­ted attacks that could have been more seri­ous. Noth­ing of the dimen­sions of 9/11. What you have to under­stand is also that pres­id­ents carry around with them the concern about threats that we don’t read about every day. And there may be only 100th of 1% of a chance that there would be a nuclear device exploded in an Amer­ican city. Does that mean we should­n’t design a system that would enable us to pick up better indic­a­tions of that? We had after the 9/11 Commis­sion, a Weapons of Mass Destruc­tion Commis­sion, WMD Commis­sion. And it made some valu­able recom­mend­a­tions. It looked at some of these perform­ance meas­ures. The abil­ity to detect weapons of mass destruc­tion, to monitor them, using soph­ist­ic­ated, tech­nical, some human source meth­ods. It’s always diffi­cult to meas­ure what has been preven­ted by what you have been able to do, as a result of intel­li­gence saying, harden this target, prepare this one. It’s certainly true that foreign policy decisions by Pres­id­ents are not less contro­ver­sial because he has the CIA and other intel­li­gence agen­cies help­ing him make smart decisions. So do we say intel­li­gence fails because Pres­id­ents don’t make good foreign policy in your opin­ion? Some people use that as their metric. Each agency, because it is using differ­ent meth­ods, has to have a differ­ent way of meas­ur­ing what it’s able to accom­plish. What can you get through the bits and pieces of commu­nic­a­tions, versus what can you get from a human source who is in a partic­u­lar posi­tion? What can you get from imagery that comes from space? And how does it all fit together? When it comes right down to it, you have to turn to the analyst. Intel­li­gence analysts have to be the cent­ral focus of perform­ance eval­u­ation. Their views, as to what best serves their abil­ity to develop the inform­a­tion that can be acted upon, whether to protect a target, whether to inter­cept, prevent an attack, or whether to make a smart polit­ical or milit­ary decision, the analysts have to be the ones to do that. And the intel­li­gence community tries to give the analysts that voice. The analysts do not know enough about where the intel­li­gence is coming and how they get it, and that would be one way of improv­ing, but it’s an extraordin­ary chal­lenge we put on the intel­li­gence analysts. And they are too often forgot­ten in the whole – unless they are accused of screw­ing up, as occurred after the Iraq war and the whole ques­tion of WMD that Saddam had.

Q: Right. And is that more – in other words, there were a lot of differ­ent analysts saying differ­ent things at the State Depart­ment, vs. at the CIA, vs. at the Depart­ment of Defense. So is that a matter of the poli­cy­maker choos­ing which intel­li­gence supports the policy he prefers?

ELLIFF: That’s always going to be one of the chal­lenges the intel­li­gence community faces. That when there are extremely intense policy views held at the lead­er­ship levels of the govern­ment, how do you avoid having that influ­ence your – the intel­li­gence that you provide? And that is not easy. I have to say that some­times, intel­li­gence analysts are also frus­trated when the lead­er­ship levels of the govern­ment don’t pay any atten­tion to the intel­li­gence that these billions of dollars and these bril­liant minds have produced. And that can also be frus­trat­ing as well, when decisions are made without parti­cip­a­tion. I do think though that the lessons that were learned after the first Gulf War kind of inocu­late the intel­li­gence bureau­cracy for a long time to come. Like Pearl Harbor became the model for the whole Cold War era of being able to anti­cip­ate a poten­tial war with the Soviet Union, and I think the Iraq War decisions are going to have a similar long-range impact as Pearl Harbor did.

Q: You mentioned the Privacy and Civil Liber­ties Over­sight Board. And they recently published their second report as you said, eval­u­at­ing the Section 702, Foreign Intel­li­gence Surveil­lance Act program. One of its recom­mend­a­tions struck me as very odd. Recom­mend­a­tion 10 says, “The govern­ment should develop a compre­hens­ive meth­od­o­logy for assess­ing the effic­acy and relat­ive value of coun­terter­ror­ism programs.” That seems like that would be part and parcel of what you would do in these agen­cies if you have a program, to constantly eval­u­ate whether it’s work­ing. Do you have any comment on that?

ELLIFF: Well, it’s been partic­u­larly diffi­cult to do across these differ­ent discip­lines, whether it’s commu­nic­a­tions intel­li­gence, the human intel­li­gence that is tied to a law enforce­ment agency like FBI, human intel­li­gence, the CIA that oper­ates largely but not entirely in a covert mode around the world as opposed to FBI agents who show their badges. The use of all kinds of tech­no­lo­gies, whether it’s imagery or commu­nic­a­tions, it’s diffi­cult to be able to impose a discip­line across all of them. And the meas­ure of what is terror­ism is diffi­cult. And part of it is the chan­ging nature of what terror­ism is. So that now you have differ­ent levels of govern­ment talk­ing about – all right, the folks from Amer­ica who go to Syria to fight in guer­rilla groups who are oppos­ing the regime in Syria. Some of those guer­il­las groups, Amer­ica is appar­ently support­ing with weapons. Others of them are – have invaded and are threat­en­ing the regime in Iraq. It is extremely complic­ated to figure out who is a terror­ist, and who isn’t. So I’d have to say that the abil­ity to come up with this kind of metric is a tremend­ous chal­lenge. We have a National Coun­terter­ror­ism Center. And it has matured over the past ten years. So it’s in a posi­tion where if the Pres­id­ent looked at this recom­mend­a­tion, he would turn to Matt Olsen, the director then, and say, “Mr. Olsen, what’s your answer to this?” And I would expect that that is prob­ably what’s happen­ing with this report right now. That the White House turned to Mr. Olsen at NCTC and said, “What is your assess­ment of this recom­mend­a­tion?” And that it would be inter­est­ing for the over­sight commit­tees to get Mr. Olsen’s response.

Q: Are there any other recom­mend­a­tions that you would put forward?

ELLIFF: One change occurred in the Senate rules for select­ing members of their intel­li­gence commit­tees. In the years I was there, from the creation of the commit­tees, there were term limits on the members. Now, Senat­ors served for six years. It was an eight year term on the Intel­li­gence Commit­tee. And there was some debate over whether term limits ought to be contin­ued. And among the argu­ments for the circu­la­tion of Senat­ors onto that commit­tee was that eight years on that commit­tee would allow an exper­i­enced senator coming off of those eight years to be able, in their other commit­tee assign­ments, to bring the know­ledge of how intel­li­gence works that they would gain on the Intel­li­gence Commit­tee. Also, it would prevent the long­stand­ing members of the commit­tee who would rise to seni­or­ity and stay there forever, from being co-opted. That yes, it does take several years to be able to figure out what you ought to do on the Senate Intel­li­gence Commit­tee, but then you have several years to do some­thing. And you are not bound to think, “Well, wait a minute, how’s this gonna affect me in the future years? No, I’m not gonna be here.” Now, as years went on, some­times members would circu­late off and then come back to the Intel­li­gence Commit­tees. And that was all right because they had had that differ­ence – differ­ent perspect­ive. I would like to see term limits for the Senate Intel­li­gence Commit­tee. I don’t know about the House. I was not exper­i­enced with how things worked on the House side. That’s a small change but it’s some­thing that your ques­tion triggered a response to.

Q: And let me ask you this ques­tion. Very little about the Senate Intel­li­gence Commit­tee or how Senate Intel­li­gence Commit­tees’, for that matter’s busi­ness over the last 40 years, is public. And so that makes it very hard for the public to really have a good meas­ure of how these candid­ates are perform­ing. Do you think there could be more trans­par­ency in how these commit­tees work?

ELLIFF: Well, in the early years, the rules of the Senate required the Senate Intel­li­gence Commit­tee to submit an annual report on what it did. And I remem­ber we had to go through that drill, and say all right, now we worked on arms control treat­ies. And not a whole lot you can say about what you were work­ing on. “Worked on Foreign Intel­li­gence Surveil­lance Act. Worked on – received the annual reports from the Attor­ney General on surveil­lance under FISA.” And the respons­ib­il­ity to be account­able to the body of – for what you were doing, I thought that was a useful exer­cise to have. And I was sort of sorry that it disap­peared in the mid-80’s. And we didn’t continue that prac­tice. Yes, it can risk being pro forma. And  it did tend to dimin­ish in its value. I do think, however, that there is an extraordin­ary amount that is public- but is not able to be brought together, because it is not – has not been the subject of the kind of study. So if you go to an Amer­ican govern­ment course – I taught Amer­ican govern­ment to college students for years, and you come to the section on defense and foreign policy, and there will be a little section on intel­li­gence. When it comes to law enforce­ment, there’s no real – not much about the FBI. There really is some­thing the academic community seems to avoid, but Congress gets extraordin­ary focus. Elec­tions get extraordin­ary focus. Over­all, bureau­cratic beha­vior and admin­is­trat­ive beha­vior gets great focus. But I would be happier to see more academic focus, so that when college students are study­ing about Amer­ican govern­ment that they really learn signi­fic­antly about the intel­li­gence community. And the raw mater­ial is there. There are issues. Now, the members are regu­larly making state­ments about foreign policy. The Pres­id­ent’s decisions on foreign policy that reflect that they have a role on the intel­li­gence commit­tee. And the press certainly treats it that way.

Q: And that’s a perfect segue. If a member of the public was trying to learn more about the issues involving intel­li­gence activ­it­ies and intel­li­gence over­sight, what would you suggest they read?

ELLIFF: Well, certainly the Church Commit­tee reports stand up, partic­u­larly Book 1, which is an over­view of foreign and milit­ary intel­li­gence. And that that’s really key. Book 2, which was intel­li­gence and the rights of Amer­ic­ans, tended to be period-specific. This was the era of the – I haven’t said the word, J. Edgar Hoover, but it was the era of McCarthy­ism, the era of the turmoil of the 60’s, and it’s not some­thing that has that much more than historic interest. Great historic value, as lessons of things to avoid, but I do think when it comes to the issues that are in the paper today, that the public reports of the Privacy and Civil Liber­ties Advis­ory Board, which are on their website, PCLOB.gov. They are valu­able to help you really feel like there is some­body who’s trying to explain this to a member of the public. It’s not easy­going but it’s better than anything else that’s avail­able. There’s one book that I ran across recently, also. And that’s by a man named Jack Gold­smith. It’s called Power and Constraint. And Mr. Gold­smith is a professor at Harvard Law School. And in the – towards the end of the first George W. Bush admin­is­tra­tion, after the Iraq war, after 9/11, he became the assist­ant Attor­ney General for the Office of Legal Coun­sel. And he took a look at the legal opin­ions that had been writ­ten to justify what NSA had been author­ized, in a very secret way, to do. And he said they were worth­less. And that they needed to have new opin­ions and that the program needed to change, signi­fic­antly. And he made that case to the acting attor­ney general, Deputy Attor­ney General James Comey. And Mr. Comey consul­ted with the FBI Director, and he went to the White House, was not able to persuade the White House to change. And he said, “Well, I think – it says the Attor­ney General is supposed to certify this, and I don’t think I can do this.” And so the coun­sel of the pres­id­ent, Mr. Gonzales, decided he would have to go find the Attor­ney General, who was in the hospital, recu­per­at­ing from an acci­dent – not acci­dent, from an oper­a­tion. And the Attor­ney General was not prepared to retake the reigns of office. And so when Mr. Gonzales shows up, Mr. Comey is there with the FBI Director Bob Mueller with him. And this is multiple accounts. The Attor­ney General says he’s not going to over­rule Mr. Comey. And the Pres­id­ent has to be told, “Sorry, but your Acting Attor­ney General is gonna not approve this.” And some recom­mend­a­tions were made that he over­rule the Attor­ney General, at which point the acting Attor­ney General, the Deputy Attor­ney General, Mr. Comey, and Mr. Mueller, the FBI Director, said that if that were the case, they really thought that they would have to move on to other posi­tions. And leave the govern­ment. So this was like a famous moment in Water­gate called the Saturday Night Massacre. When an Attor­ney General and a Deputy Attor­ney General both resigned before they would carry out an order from Pres­id­ent Nixon. So Mr. Gold­smith has some cred­ib­il­ity. And a couple years ago, he sat down and inter­viewed lawyers on both sides, through­out the intel­li­gence community, in the over­sight commit­tees, in the Amer­ican Civil Liber­ties Union, and lays out how the over­sight process works today. What lawyers do in the agen­cies. How the checks work. They don’t always work. Some­times, things were done in secret that people thought were suffi­cient to satisfy the Consti­tu­tion and the polit­ical process in an open soci­ety. But it really was a fail­ure and Mr. Snowden’s disclos­ures were the turn­ing point. Still, his book is one that is very valu­able. Now, it does­n’t tell you what the intel­li­gence busi­ness is all about. How it serves the war fighter. How it serves the pres­id­ent as chief diplo­mat of the coun­try. How it serves law enforce­ment, whether deal­ing with terror­ism or deal­ing with foreign spies and cyber-crim­in­als, or deal­ing with the tradi­tional prob­lems of organ­ized crime and narcot­ics. So one other point I’d like to make since this is sort of encom­passing. And this has to do with the Snowden disclos­ures. I believe – and this is totally subject­ive – that Sen. Ron Wyden, a member of the Intel­li­gence Commit­tee, had proceeded on a path that was reas­on­ably likely, within a matter of months, to produce the disclos­ure of the bulk collec­tion of domestic commu­nic­a­tions that was one part of Mr. Snowden’s disclos­ure, and that was the one that has been the focus of the legis­la­tion to fix the prob­lem. Where there was broad­est public outcry. Now, what Sen. Wyden did was to artfully – or devil­ishly, from another point of view—cre­ate a ques­tion in a public hear­ing for the Director of National Intel­li­gence, General James Clap­per, about the collec­tion of intel­li­gence on Amer­ic­ans, that resul­ted in Director Clap­per making a false state­ment. Know­ingly making a false state­ment. And that – that, I believe, would have given Senator Wyden the lever­age to be able to pry out that – disclos­ure of that program. But, that was pree­mp­ted by Mr. Snowden, who decided that he needed not only to expose that program, but far many other programs that he felt were unfair to the privacy of citizens through­out the world. And that’s some­thing that he did and what’s fascin­at­ing, this past week­end – and this is time-specific. We’re talk­ing about the first week of July, in 2014, but the Wash­ing­ton Post had a big story on Sunday which laid out in great detail what Snowden provided to the report­ers that was the raw text of e-mails collec­ted by NSA. Stor­ies were about foreign­ers. And in the course of the story, the report­ers say that Mr. Snowden delivered this mater­ial to the report­ers on the under­stand­ing that they would take this mater­ial to the intel­li­gence community, have the intel­li­gence community review it, and edit it, and advise the report­ers what could be – risk people’s lives, risk oper­a­tions that were legit­im­ate intel­li­gence oper­a­tions, and the paper says, “Yes, based on that feed­back from the intel­li­gence community, we are not publish­ing parts of the inform­a­tion that Snowden gave us.” First of all, that speaks to the motives of Mr. Snowden. He does appear to have wanted with this inform­a­tion to not have it released whole­sale, in compar­ison, say, to the WikiLeaks disclos­ures. But second, that it reflects the role of the press in all of this. And that the press really has a terrible respons­ib­il­ity to be able to find that line between what is neces­sary for the public to know, to make policy, to express opin­ions on policy, and for a broad range of lawmakers to know, and what’s neces­sary to be kept secret, even though they know it, even though they have that inform­a­tion, even though it might be fascin­at­ing, it might sell news­pa­pers tremend­ously, if they were able to publish it, but because it’s so dramatic, but they’re gonna keep it secret because the govern­ment has made its case. We should­n’t have to depend on that kind of secrets – it should be possible for the Senator Wyden’s of this world, who are on the Intel­li­gence Commit­tee, to be able to pry out the inform­a­tion that’s neces­sary for Amer­ic­ans, partic­u­larly when it involves Consti­tu­tional rights, to have that inform­a­tion prop­erly debated. And that gets to one other reform that is neces­sary. And that is with respect to the Foreign Intel­li­gence Surveil­lance Court. I played a role in the 1970s in writ­ing the legis­la­tion that created that court. And the fact that the court today has essen­tially the func­tion of making advis­ory opin­ions regard­ing programs of surveil­lance, I believe that one of the proposed reforms that’s vitally neces­sary is to open that process so that there is a way that the court can hear not just from the govern­ment, and not just from its own expert staff, which, based on read­ing recent declas­si­fied opin­ions, it’s a pretty good staff. But that there has to be another way for a differ­ent point of view, differ­ent analysis of the Consti­tu­tional issues, and how they inter­play with this extraordin­ary complex tech­no­logy, to have that considered by the court. There are vari­ous propos­als in the Congress right now. I hope that some version of that comes through because the court truly needs to have another analysis of these extraordin­ary capab­il­it­ies to intrude into privacy that are diffi­cult to manage.

Q: Great. Well, thank you very much Dr. Elliff. This has been really help­ful. Actu­ally, I have one more ques­tion. You had mentioned DNI Clap­per’s response to Senator Wyden’s ques­tion about “Do you have a program this big?” and he replied “No.” In previ­ous eras, people who lie to Congress face reper­cus­sions of that, but here we have the DNI still serving as the DNI more than a year later. Does that – how does that impact the over­sight? In other words, if a member of Congress believes that a govern­ment offi­cial can say some­thing that’s not true during a hear­ing and there’s no rami­fic­a­tion from it, how does that impact their abil­ity to get truth­ful inform­a­tion when they need it?

ELLIFF: I think that tremend­ous damage has been done, to the process, by doing this. It’s some­thing that when Sen. Wyden set that process in motion, that he has to have recog­nized that it did create a tremend­ous risk that what would happen would happen, and that that would bear on the cred­ib­il­ity of the over­sight process, but in this case, Gen. Clap­per was caught, and because of the onslaught of Snowden revel­a­tions, there was no one look­ing back­wards and saying, “Well, what do we do about what General Clap­per did?” I mean, Richard Helms went to jail, I believe, at least was convicted, as I recall, back in the 70’s, for lying to Congress about some aspect of CIA covert action in Chile. And that is not some­thing that people called for in the case of Gen. Clap­per. They recog­nized that Sen. Wyden had put him in an impossible dilemma. The members had agreed that this program should be secret. They all knew about the program. Other members of Congress, when the legis­la­tion was passed that author­ized the program, had the right to see the secret explan­a­tion as to why the law they were passing author­ized this kind of activ­ity. Now, whether Congress should be in the busi­ness of passing laws that have secret mean­ings that the public can’t under­stand and that the legal profes­sion can’t under­stand is beyond me. If I were a federal judge, I would say, “Well, no, no, this is not legis­la­tion that I can pay any atten­tion to when I’m decid­ing a case in court.” That aspect of the over­sight process may have served the polit­ical needs of the process. But whether that kind of legis­la­tion could actu­ally stand up in court to be used by the govern­ment to defend its beha­vior, it would be inter­est­ing to see a law review on that.

Q: Great. Well, terrific. Thank you very much, Dr. Elliff. I appre­ci­ate it.