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.
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.