Frederick A.O. “Fritz” Schwarz, Jr. is Chief Counsel of the Brennan Center for Justice at NYU Law School and Senior Counsel at Cravath, Swaine and Moore. From 1975–76, Schwarz served as the Chief Counsel to 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 is the co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror (The New Press, 2007), is currently writing a new book, Democracy in the Dark: The Seduction of Government Secrecy, scheduled for publication in Spring 2015.
Mike German, a Fellow at the Brennan Center for Justice at NYU Law School, interviewed Fritz Schwarz on August 19, 2014. The following is an edited transcript of that interview.
Q: Hi. My name’s Mike German. I’m a fellow with the Brennan Center for Justice at NYU Law School. And today it’s my honor to be with Fritz Schwarz. Fritz is the Chief Counsel at the Brennan Center. He is also Senior Counsel at Cravath, Swaine and Moore. From 1975 to 1976, he was Chief Counsel to the Senate Select Committee on Government Activities, with Respect to Intelligence.
SCHWARZ: Mercifully known as the Church Committee.
Q: Mercifully known as the Church Committee, after its Chairman, Senator Frank Church. And I also would be remiss to say, the 2014 winner of the Ridenhour Courage Award. So congratulations on that.
SCHWARZ: Thank you.
Q: And you’re currently working on a book about government secrecy called Democracy in the Dark.
SCHWARZ: Democracy in the Dark: The Seduction of Government Secrecy.
Q: Perfect. So, let’s start with the Church Committee, which was the first, the government’s first comprehensive look at intelligence activities which had been taking place for decades without very much supervision. What were the goals of your committee’s investigation? And what were the pitfalls that you faced?
SCHWARZ: Well, the Church Committee was the first. It’s also still today the most comprehensive investigation of intelligence in the United States or in the world. So, goals and pitfalls? Well, the first goal was to have an investigation that was open and rigorous. Because before that, in the Senate and the House of the United States, and certainly in allies like Great Britain, the view was, don’t ask don’t tell. They’d rather not know. The senators, the congressmen, would rather not know what was going on. And they were quite explicit in that, in what they said to J. Edgar Hoover or the directors of the Central Intelligence Agency: “Please don’t tell us. We’ll give you a pile of money anyway.” So, the first goal was to actually have an investigation. Now, then it was important that we get started and succeed. This is a long answer. But how was it that the investigation happened when it did for the first time in 1975–76? I think the events of Watergate, and the furor about the Vietnam War, and the leaks like the Pentagon Papers had led to a pent-up interest in what the secret government had been doing. So instead of “don’t ask, don’t tell”, it was “please let us know”. Now, we were also helped by the fact that Richard Nixon had resigned in disgrace before he would be impeached. Because, in part because he had secretly tried to manipulate the CIA and the FBI, as well as committing crimes in the course of covering up Watergate. And Gerald Ford, who was his second vice president after the first one resigned for corruption, Gerald Ford was faced with a dilemma. He really couldn’t tell us to go jump in the lake. He couldn’t fail to cooperate with us. So he was under enormous pressure to cooperate. That doesn’t mean that the Ford White House just bent over and gave us what we wanted without a push. We had to push often. But we were lucky that Ford was in that difficult position. And then the final external event that I would emphasize was that J. Edgar Hoover was dead. J. Edgar Hoover, as we proved really for the first time, had been an abysmal leader of the FBI as far as how ordinary Americans were treated, and as far as how he abused the political information that he had and the personal information that he had. He being dead removed, I think, a fear that would have existed had Hoover been alive. And I think the Congress, the senators – I was speaking for the senators – would have been more reluctant to take on the FBI. And at the end of the day, I concluded our FBI investigation was even more important than our CIA investigation and NSA investigation, because to really simplify it, what the FBI was doing threatened democracy in America, and what the CIA was doing – again, to simplify – injured our reputation in the world. And between the two, you have to worry more about democracy being undermined. So that’s some of the background. Now aims included doing the job in a non-partisan way. Senator Mansfield, Mike Mansfield, who was the Senate Majority Leader, and who’d called thirty years earlier, or twenty-five years earlier, as a junior senator for an investigation of the CIA, which got absolutely nowhere – but he structured the committee in a way that was helpful toward the goal of non-partisanship. And we had, instead of the normal ratio of that time- which would have been seven Democrats and four Republicans- we had six Democrats and five Republicans. And the senior member of the minority party, the senior Republican was the Vice-Chairman, which was a real job, and not the ranking member which is the norm, which is a titular job, but not a substantive job. So we were set up to be non-partisan. And the committee succeeded in that very well. I can come back to that subject if you wanted to, but…
SCHWARZ: In proving our non-partisan nature, most people, when we were created, said, “Well, what they’ll do is just bring out more wrongdoing by the Nixon Administration.” We did bring out more wrongdoing by the Nixon Administration. But, we also showed that every president – and there were six between Franklin Roosevelt and Richard Nixon – had abused their secret powers. And I think that finding probably was our single most important finding. And it’s a finding that helped with the committee’s internal cohesion and their external success. Now another – I’m going to do one more thing on success and then another part, another pitfall point. On success – it was important that we, we get the facts. And I want to come back to that. But it was important that we then take the facts that we had discovered and disclose them, and give the information to the American public so that they – and give it to them in a way that was understandable at the hearings – most of which were public, but some, like on assassinations, were in executive session only. But give the information to the public in a way they could understand it. That was certainly something that I personally was very much invested in. Now, we had to… This is a potential pitfall that we avoided. We had to demonstrate that we would handle secrecy responsibly. And that means, not going in with an attitude that everything that’s secret is for that reason improper, because there are proper secrets. So we recognized that in A, how we structured our discovery of the documents of the government agencies and B – and if you want to, you could ask me a question to come back to that…
SCHWARZ: And B, in writing our final reports, writing our published reports, where we agreed to let the White House and the relevant agencies see a copy of the final report – or in assassination’s case, the interim report – so they could argue that we had inadvertently revealed secret information that wasn’t necessary to our findings. And that worked very well.
Q: And you mean that privately, before it was released?
SCHWARZ: We did that privately before it was released. In the same way as after the Pentagon Papers case, most good journalists do the same thing before they release a story about secrets.
Q: So you said you were personally invested in making sure the public got to see as much as possible. Why was that important to you?
SCHWARZ: Well, I was personally invested in this being an investigation, too. Because there was a dispute at the beginning about whether what we would do would be to listened to – and the expression then was “wise men” – and having listened to wise men say what the problems were and what the remedies were, then we would just come out with a report about, reflecting, what they told us, and what we thought would be the right remedy. I fought very hard against that and was successful because I said, no, if we don’t prove real harm that affects our democracy and affects ordinary people, we will never build the kind of public forum or support for change that we need.
Q: Great. What lessons did you learn about government secrecy during the course of your investigation?
SCHWARZ: Well, there’s too much. It lasts too long. It too often is for reasons of avoiding embarrassment or concealing improper, or otherwise illegal, conduct. But there’s also some legitimate secrecy. And if you don’t recognize that you have to draw that distinction and be careful about it, you won’t succeed in your investigation. And the parallel House committee, which eventually was known as the Pike Committee, was doing some very good work, particularly about the CIA about the quality of their intelligence. But at the end of the day, they were a really unfortunate failure, because they never mastered an understanding of the difference between legitimate secrecy and illegitimate. And they would take unnecessary ideological positions like, you can’t block out the name of an informer in the first instance when you produce the documents to us, or we’re not going to have a real dialogue with you about what our reports will say. So they, they, they foundered at the beginning and they failed at the end because they didn’t address the subject of secrecy with any sophistication.
Q: And when there’s a debate in the public about secrecy, often it focuses on over-classification. And that’s obviously a rampant problem. But in the book, you argue that that’s sort of too narrow a lens to view this problem, and that there are inherent dangers in secrecy.
SCHWARZ: Yeah, I’ll give two conceptual points on that. One, is the practice of making decisions in the White House with only a group of yes-men in the room. And that’s a very dangerous practice. It’s very common. It was common during the Vietnam War. It’s been common since 9/11, particularly under the Bush Administration. But Obama Administration too has had too many closed White House decision-making processes. And that increases the chance of error. And another, another danger that’s way beyond classification is sometimes there are examples of very appropriate classification which nobody thinks about changing and releasing the information, even though it’s properly classified. And I’ll give two examples of that. One would be the Bush Administration’s, the Bush White House’s… They got a lot of warnings from the CIA that a calamitous event was being planned by al-Qaeda. It was something that would be much, much, much, much more serious than anything that had been done before. Without thinking, they just kept those secret. I’m convinced, and I argue in the book, that if the warnings had been disclosed to the public and to every government worker responsible for worrying about terrorist attacks, we would have thwarted the 9/11 attack. Another example also of an iconic event in American history was the Cuban missile crisis, where Russia had atomic bombs, had put atomic bombs…
So the Russians had under cover, and without our learning about it until we had U-2 flights that picked it up in Cuba, put in nuclear missiles and nuclear warheads in Cuba. And we successfully, ultimately by, largely by JFK and the rest of his Administration being tough, got the Russians to back down. But little known – not known at the time, and not well enough known even now – was the night before the resolution, Bob Kennedy, the Attorney General, the president’s brother, a person ambitious on his own for ultimately becoming president, as comes out in some of the dialogue about this – goes to see the Russian ambassador and says, if – first says, “If you don’t back down, we’re gonna escalate against you;” he gives a threat first—but then he says, “If you back down, we will make a deal with you to remove our missiles.” Land-based missiles in Turkey – equally close to Russia, as Cuba is to southern United States. But, he said, “That has to be kept secret and never known.” Now that was, that deal was made. And it didn’t become known for twenty or thirty years. This had some very harmful impacts. Again, it was legitimately secret at the time. Because if we’d announced the day of the deal that we’d, the day of the settlement of the missile crisis that we’d made this deal involving Turkey, our allies would have said, ”hm… United States, when it gets in trouble it’ll sell us down the river.” Now, that’s not something that was a problem later on, because other missiles, submarine missiles were put in there and so forth. But while legitimate at the beginning for diplomatic reasons, the diplomatic reasons disappeared, and it was kept secret for all the remaining years because it was thought to be inconsistent with the reputations of the assassinated John Kennedy and the ambitions of the ambitious Robert Kennedy, who himself unfortunately was later assassinated also. And it really was kept secret until the 90’s. Well, why did that matter? One thing it did is it deprived the American public of an object lesson, that democracy is not just a fist in the face of your opponent. You make deals. It’s not a blinking eye contest, which people will recognize from a Rusk metaphor: we were eyeball to eyeball and the other side just backed down. So the first harm was to the sophistication of the American people. But, in addition, Mcgeorge Bundy, who was one of the people who did know the secret – and there were only nine people in the administration that knew the secret – the two brothers, and seven others. But Mcgeorge Bundy, in his book later, Danger and Survival, says, “I think this led, this helped lead, to the overthrow of Khrushchev two years later.” Khrushchev was the Russian Premier at the time of the missile crisis, and he was, for the days, for those days, a moderate, and was replaced by a more hard line Soviet communist. And another more subtle problem—and harder to prove, but I think likely—is that LBJ, who succeeded Kennedy and was always haunted by the Kennedy mystique. I think when he was dealing with Vietnam, that a factor – you can’t say it’s the factor – but a factor in his toughness, his felt need to appear tough, was well, my sainted – who he didn’t like very much – but my – that’s unfair, who he had troubles with, John Kennedy – but my predecessor was known to win this incredible struggle just by being tough, when in fact Kennedy won by being tough, and by being willing to make a deal.
Q: Okay. And you call it “the triumphant myth” in the book.
SCHWARZ: Yeah, yeah. Well, that’s actually not my words. That’s from Gelb.
Q: Okay. Alright. And another example you mention in the book is the, the Bush Administration’s decision to use torture as a tool in its anti-terrorism arsenal.
SCHWARZ: Yeah. I mean, that was something that they did in the dark of night. They did it with a team of yes-men in the room. They did not have anybody from the State Department, who would have said, “Well, that’s dangerous.” They did not have people from the military who would have said, “Well, you know, isn’t this going to increase the chance of the same thing being done to our men and women in the armed forces if they’re captured?” And they really didn’t think through the implications – leaving aside the legality, and leaving aside the phony process they had of getting an opinion from a lawyer in the Justice Department, John Yoo, junior lawyer, who again operated under different and more secret processes than normally are done in the Justice Department. Usually, the Justice Department’s Office of Legal Counsel will not have an opinion unless it’s been vetted by many other people in the Justice Department. But John Yoo’s opinion here was not vetted by anybody at all. Now, just another word about John Yoo. He actually believed what he said in his memo, which had a lot of nonsense in it. But one of the pieces of nonsense was that the American Constitution intentionally gave the President the powers of an English king back in the 17th century. The problem with that was, A, the English had gotten rid of those powers, which were powers to ignore Parliament; and B, our Constitution, our Revolutionary War, was fought to get rid of those powers, and C, the Constitution clearly got rid of them. So, while John Yoo believed what he wrote – he wasn’t a phony – he was really amazingly wrong in what he wrote.
Q: And here we are, more than a decade later, and still feeling the ramifications of those decisions.
SCHWARZ: And you know, later you’re going to talk to me about the Senate Intelligence Committee. And I think that’s gotten weaker than it was intended to be, and more in, in bed with the agency they’re meant to look at. But on the – they’ve come up apparently with a report that says the torture was, number one, worse than even John Yoo had said was okay in his opinion, and B, didn’t do any good. And the Obama Administration has held up that report for far too long over arguments over classification and, I would say, equally the Senate, which has tools to publish something, even if the Administration says it’s still classified – and the tools are sort of complicated and I cover then in the book – but they’ve either chosen not to use those tools or the partisanship in the Senate might make it impossible for them to use the tools.
Q: So sticking with the presidents, just for the time being though, what is so seductive about secrecy for the presidents? ‘Cause almost every president runs on the idea of transparency and talks about how crucial transparency is.
SCHWARZ: Well, you could take Woodrow Wilson as one good example of that. You could take Barack Obama as another. Well, first, when you’re outside, you’re not responsible. When you’re inside you’re responsible. And therefore, the burden of the dangers and so forth weigh more heavily on you. Then—thinking, I have a passage in the book which speculates for Obama why he… he didn’t totally change; I mean, he’s done some good things. But he’s been more compliant with the wishes of the – particularly the CIA and the NSA—the parts of the intelligence community meant to be operating overseas. Well, I think another factor is, you recognize these people are very good in much of what they do, and they’re very important to me. So it’s first, you discover more about the dangers. And second, I think you get some more empathy for the people running the intelligence agencies, because you know they’re doing some very good work. So it’s a, it’s both a change of your knowledge and a psychological factor that affects your willingness to challenge those secret agencies.
Q: So one of the programs that we’ve learned about through leaks by a concerned insider, Edward Snowden, NSA contractor, caused a number of opportunities to look at what they were doing when the President established the group they called “The President’s Review Group” to look at these intelligence activities. And one of the things interesting in that report is they talked about how the intelligence agencies don’t do enough risk management looking at these other problems when they’re establishing a program, particularly what will happen if it’s exposed and therefore sort of caught off guard, much the way they are. But you would think that in an intelligence agency, their job is risk management…
Q: …that that should be part and parcel of what they’re doing.
SCHWARZ: Yeah, and to pick up on your… what happens if they’re exposed, the shelf life of secrets is now far shorter than it was when we did our work for the Church Committee. There, many secrets were secret for thirty years, forty years; now you’d say three years or four years and there are a lot of reasons for why the shelf life is shorter, which we could come back to if you wanted to…
SCHWARZ: ….but, that’s definitely a factor that has changed. And what else were you driving at?
Q: Why the intelligence agencies aren’t doing the kind of risk management that would incorporate all these dangers, the… the risk to democracy that secrecy presents, as well as – would you… sort of, when you were talking about the State Department…
SCHWARZ: Yeah. I think they haven’t yet internalized the point about risks to democracy. I hope my book, which is, basically that’s the theme that runs through all three hundred pages of the book, which I hope people like. But, so that’s not something they’ve really internalized. And I think that’s not going to be easy for them culturally to internalize that risk. Other risks, like, if it’s exposed, what does it do to our foreign relations? If it’s exposed, what does it do to our reputation as an agency? I think they do recognize… but they bury it a little bit, you know? Getting the job done is the aim, and not thinking about, “Well, what happens if it screws up?"
The FBI, at least for a while, I thought, internalized the lesson that if we’re in the business of domestic disruption, if we’re in the business of overly broad domestic surveillance, it’s going to hurt our success in law enforcement. Now, we need to have… I don’t know whether today, internally, the FBI does ask those questions…
Q: Yeah. With regard to… and I’m in total agreement with you, the impetus to action, that these agencies want to get the job done, as you said…
Q: …but one of the interesting things about the Privacy and Civil Liberties Oversight Board’s investigation of the Section 702 Foreign Intelligence Surveillance Act…
Q: …program, is they… one of their recommendations, and I’ll read it to you: “The government should develop a comprehensive methodology for assessing the efficacy and relative value of counterterrorism programs.”
SCHWARZ: Well, I mean… that would… one seems, one think, be sort of, yes, that’s… two of the most important, maybe four most important questions about any program they undertake… and… and they’re not doing it nearly as much as they should…
Q: Right… and I think it came out of the frustration of saying, “Well, what is the value?” And there were no metrics that they could show them…to demonstrate the value, but… but again…
SCHWARZ: Yeah, so… so much…
Q: …you would think that would be…
SCHWARZ: …so much of what the intelligence agencies have done, which were seen as successes when done, have real serious long-term adverse impacts. And the overthrow of Mossadeq in Iran; he was a democratically elected Prime Minister of Iran, and people worried that he might be close to the Communists, although he wasn’t a Communist. And they worried that he was going to, uh… interfere with the British oil monopoly in Iran. And so the British wanted to overthrow him and we, with Theodore Roosevelt’s grandson doing a lot of the work, too, as head of the CIA… CIA Head of Station in… in Tehran, overthrew him. And the Shah came back! And the Shah was regarded as a friend of America and a wonderful thing! Eisenhower thought it was a great triumph, although interestingly enough, even though in private he was saying the CIA did it, he took it out of his autobiography that he wrote after he finished being President…but in the long run, terrible impact! That is what caused the anti-Americanism of the people who overthrew the Shah. And real, real harm in the long term to Americans’ interests.
Q: And yet, and maybe as if part of the excessive secrecy around that, that the US Government sometimes does support regime change around the world, including sometimes democratically elected governments…
SCHWARZ: Yeah, in Chile, Guatemala, Iran…
Q: So, is it that we don’t learn the lesson of the negative? Or at least, the intelligence agencies don’t?
SCHWARZ: I think we don’t… remember the lessons. We maybe learn them, and don’t… choose not to, or don’t remember! And… and it’s actually surprising to me how little discussion of that fact there is in the debate about Iran today. I mean, we don’t want a nuclear weapon in Iran. But in the debate about it, people forget the history of why Iran felt antagonistic to America, and also probably why they feel, or have felt, they need the deterrent of an atomic weapon.
Q: And they haven’t forgotten it over there, though…
SCHWARZ: They certainly haven’t…
Q: Yeah… so here we are, forty years after your work on the Church Committee, and the Snowden Leaks have given the American public an idea of the scope. And in addition to what the intelligence agencies are looking at, or doing, the… a lot of criticism has fallen upon the structures that were designed to create oversight after the work of the Church Committee, the… select committees in Congress and the Foreign Intelligence Surveillance Court. So, why don’t we start with the Foreign Intelligence Surveillance Court. We’ve now seen a number of opinions that just a couple of years ago, even the Obama Administration said these could not be made public because they were so entwined with the facts of each case. Now we have seen many of them in public …
SCHWARZ: By the way, just… let me make a comment on that and then you can complete your question. I think the main fault of Bush Number Two, George W. Bush, and Obama… in instituting the Metadata Program and in Obama in continuing it- yes, that raises lots of issues of legality, and privacy, and effectiveness. And they’re all important. But I think the most fundamental issue was the failure – the democratic failure – to openly discuss that plan with the public, and the Congress. And there was nothing dangerous about discussing it, I mean, what is al-Qaeda going to do? They already thought their actual phones were being listened to; they don’t worry about metadata; so that’s sort of an aside from finishing your question.
Q: Sure. So now that we have been able to look at the operation of the Foreign Intelligence Surveillance Court, what’s your…?
SCHWARZ: Well, I would go back, and then come forward.
SCHWARZ: What we saw on the Church Committee and that Court, and the Foreign Intelligence Surveillance Act, comes directly out of the Church Committee’s work. And I continued as a consultant to then Vice President Mondale after I was back at work in my New York firm, and after he was Vice President, and a consultant on this act, as well as a number of other things. So what we’d seen is the practice of wiretapping and bugging domestically of American citizens, people like Martin Luther King Jr., and Eleanor Roosevelt, and Supreme Court Justices, and other, lots of ordinary people, and all done without a warrant. And we said, “Well, we can’t say that internal security surveillance should never be done.” But what definitely should be some process in which the FBI, who does most of the acting here, although they’re acting often on behalf of the NSA, or using NSA information. They should have to get a warrant. Now, that was a correct view, both to say it shouldn’t be warrantless, and to say, “But there are times when it should be, is legitimate.” The first thing that people have said is, “Well, during the history of the Court, very seldom did they reject an application.” And I think that’s a misleading fact. It’s a true fact, but I think the implications are misleading, because the fact that the government has to disclose that it wants to go after some public figure is already a deterrent in their doing it. And they have to give a damned good reason, so there probably were many examples of surveillance that the FBI would’ve done on a warrantless basis before that they didn’t try to do.
Q: Right. And certainly, the numbers. You know, if you looked at the decades between the Act being implemented, and 9/11… it was a couple of thousand at most.
SCHWARZ: The numbers were way down.
Q: Were low, were relatively low.
SCHWARZ: I mean, well, you know, there were hundreds of thousands that the Bureau had been doing before.
SCHWARZ: So, 9/11 comes along and people are worried. And they changed the law, which is too complicated to spend much time on. But they also changed the sort of practice. And the FISA court is asked to do things which no court should be doing; they’re asked to make rulings on what’s the proper degree of mitigation, and that’s really a legislative, or an administrative matter which should be debated, I would say usually debated publicly but, anyway, should be debated. And shouldn’t be decided by a court, and certainly shouldn’t be decided by a court in which only the government is heard. I think they could do, on that last subject, they could do much more… let’s assume it’s recognized that the FISA Court should not be doing these legislative acts , or administrative acts.
SCHWARZ: But they’re still being asked to approve a lot more aggressive action.
Q: It’s no longer just a warrant request…
SCHWARZ: Yeah, along with a warrant request, and I think having a properly cleared lawyer – it doesn’t literally have to be a lawyer – but, a properly cleared lawyer who can argue the other side would increase the likelihood of the Court getting it right, without any real risk to national security. I mean, when the government wants to use secret information, and use it in a criminal trial, let’s say it’s an espionage case against someone like Aldridge or Ames who’ve given information to the Russians – sold information to the Russians –if those cases went to trial the government is able to use classified information and have a cleared lawyer on the defense side—cleared for confidentiality—lawyer on the defense side handle it. And the courts have worked out pretty good ways under that law to handle secrecy and allow lawyers to resist the government, but in those instances, it’s the government which feels the need to use the secret information. And so, they’ve constructed the statute that lets them do it, but let’s a lawyer come in for the other side.
Q: Right. And how about on the legislative side, with the Congress. I mean, obviously, there were no intelligence committees.
Q: So the level of oversight is much more significant.
SCHWARZ: Well I think, it’s not surprising that after an event like 9/11 you’d have the Congress, which is… reflects the general public mood, relax their rigor a little bit. I think the Snowden revelations show that that relaxation went on for too long, and allowed things which as the… the general reaction to the release of the metadata has been, incidentally from both Republicans and Democrats, that that’s something that went too far. And I think the Congress, the Committees, didn’t do… weren’t as rigorous as they should be. Now, one of the things that makes their life a little harder is the rules that the, sort of that the administrations have built up, that when you notify the committees, well, first thing you don’t notify them as a group; you notify only the leaders. Secondly, you don’t get the leaders in the room at the same time so they maybe could react in some way. Thirdly, you don’t allow the individual Senators to bring the experts on their staff who are A, highly qualified, and B, completely cleared for sensitive stuff. They’re not allowed to participate. So, those rules have made it harder for the Senate and the House to do the job they should be doing, and I think they should fight a little harder against those rules. I also think the reform, as the 9/11 Commission saw it, of getting rid of term limits for almost everybody on the House, and most people on the Senate Committee, is a little dangerous. Because if you are permanently, if I’m permanently your babysitter, you know, as we grow up together, we’re going to get closer and closer, and I think that’s a natural human reaction. And then, another problem with the intelligence committees—it’s really important work – but it’s hard for the Committee’s members to get political credit because so much of what they do is not seen. And probably a great deal of it can’t or shouldn’t be seen, so that’s a little bit of a deterrent to their joining the Committees, or their functioning on the Committees.
Q: And one of the functions that was envisioned in creating them was that they were going to be the conduit through which Congress ‑‑ the entire Congress – would be informed about intelligence activities. How did they perform that?
SCHWARZ: Yeah, and that’s not happened nearly enough! And again, that’s probably the administrations, have made it too hard and then, think of the psychology of the members of the Committee. Well, it’s… it’s kind of, you know, you’re sort of special if you are among the only four, or the only sixteen, who… who know these super-secret things. And so, human nature bites a little bit to make the functioning harder. And I think the administrations – and this has been true for every administration, of both parties – they take advantage of that human nat- those points of human nature.
Q: And how do you think they could be reformed in a way that would address some of these concerns?
SCHWARZ: Um, a little more insistence by the rest of the Congress, I think that would make a big difference. A little more pressure from the country; that would make a big difference.
SCHWARZ: But it’s not easy…
SCHWARZ: …because it’s… you’re… again, you… some of what you do has to be secret. And the danger is you let too much of it be secret.
Q: Right, and it’s hard to know if you’re just one Congressman who objects to a program, to know how important that… that secret is.
Q: As Senator Ron Wyden from Oregon was sort of a perfect example where he tried to warn…
SCHWARZ: Yeah. You know, and another thing that I think is relevant is that the administration, and here, I think I have more examples of the Obama Administration than any other, doesn’t sanction members of the Intelligence Community when they lie; I mean, Clapper who was – what is he? Director of National Intelligence?
SCHWARZ: Clearly flat out lied to the Senate Intelligence Committee when Ron Wyden asked him a question about whether millions—the Government was collecting data on millions of Americans – and he said, “Not…” or “Not intentionally.” And then later, when Snowden revealed that’s in fact what they were doing, he said, “Well, that was the… what I said was the least…” this isn’t his exact words, but the “Least dishonest thing that I could say,” I mean that was the thrust of what he said.
Q: Right. Yeah, “the least untrue”, I think he said…
SCHWARZ: And… you know, should he have been fired for that? I don’t know. But I think Obama, by not sanctioning him at all, sent a bad message.
Q: And, you had mentioned earlier that the Senate Intelligence Committee’s report on torture, which again, apparently through the leaks suggest that the CIA had misled the Committee about how effective these programs were.
SCHWARZ: Yeah, and then the CIA also would in effect, bug the staff of the Committee. I know when I was doing the CIA part of our work, which was—my main CIA work was on the assassination plots. And I was over there at the CIA headquarters, and reading their documents which were, you know, very revealing and quite embarrassing for the CIA. And I’m sure if they were bugging the little office they were in, I’m sure I said something like, “Can you believe this? This is outrageous!” That was a very bad thing for the CIA to do. Now, I don’t know if John Brennan, who, when the story came out said, “I don’t think that will be proven to be true…” you know? That may’ve been his true state of mind, so, I couldn’t say it’s like the Clapper Case where a high ranking Obama Administration official clearly did lie.
Q: And a lot of the discussion that we’re having, even some of the discussion about torture, came from whistleblowers. And you talk about a number of the whistleblowers in your book, including Ben Franklin, which I’d never, prior to reading that realized that he was…
SCHWARZ: So you didn’t know about that?
Q: …he was a whistleblower. Some others that we do know about…Daniel Ellsberg…
SCHWARZ: No, he… he got some stolen documents which were very embarrassing to the Governor of Massachusetts who’d been the Lieutenant Governor, who said, in effect, to the British, “Do what you can to take away their liberty!” And so he then had them revealed, and he got in a lot of trouble in England for doing that.
Q: But, as far as the importance of having these people who have that inside knowledge, because there is this thick wall of secrecy between what the agencies are doing and what they’re saying publicly about what they’re doing, which I think is the problem, that they’re actually misleading the public about what they’re doing in a lot of these cases…
SCHWARZ: Yeah, I… I talk in the book about a lot of leakers and it’s a very interesting story, but if you just take the four that I lump together at the beginning of that chapter, it was Benjamin Franklin, Daniel Ellsberg, um, Chelsea…
SCHWARZ: …previously Bradley Manning, and Snowden. Um, well, Franklin we would regard as a hero…
Q: Of course…
SCHWARZ: …for what he did. Ellsberg, I think probably the judgment of history is also that he was a hero… I’ll just pause for there for a minute. Franklin just turned over the originals of the letters, which were very embarrassing for Governor Hutcheson, and… in Massachusetts and helped, you know, fan the flames of the Revolution. Ellsberg was very careful in what he released, and he… there were four volumes of the Pentagon Papers that he held back…and they were the ones relating to diplomatic efforts. And interestingly, as I point out in the book, the… President Johnson’s press secretary revealed in his autobiography some of the stuff that Ellsberg had carefully withheld. Then we come to Manning and Snowden and the first thing is technology changed… has changed so rapidly. In Franklin’s case, it was originals of these letters which he’d somehow, when he was American Envoy in Great Britain, had been given and then he releases and got in a lot of trouble for doing that. Ellsberg got a copy… he… by the way, Ellsberg, as I bring out in the book, Henry Kissinger relied on Ellsberg when he took office to advise him about strategy about Vietnam. And Henry Kissinger had employed Ellsberg as a guest lecturer in his sophisticated courses at Harvard College and saw him, Ellsberg, a lot in the beginning, and for the first year of the Nixon Administration. But then when Ellsberg was fingered as the leaker of the Pentagon Papers, did Henry Kissinger tell his colleagues in the White House, “Oh, he was someone I relied on?” No! What he did instead was to say he was a sexual deviant who’d shot people out of helicopters in… so it was quite revealing of the lack of character of Henry Kissinger. But, the technology is important. It took Ellsberg about three months, working at night in some little small… company, or venture, or grocery store that had a Xerox machine, to Xerox the 7,000 pages of Pentagon Papers – it took him about three months. So then you come to, Manning and Snowden, and gigantic amounts of information! In Snowden’s case, on a little thumb drive, you know, the size of that…would have more information than an IBM supercomputer could’ve… would’ve had when I was representing IBM as the supposed monopolist of the computer business. And so what took Ellsberg three months, what Benjamin Franklin couldn’t possibly have done, to copy, in Ellsberg’s case, 7,000 pages, and now we’re talking, you know, 7,000,000 pages, or more than that! Which could be just like that…copied and distributed so the… that’s one of the… the fact that it’s necessary for good reasons to use digital technology to share and spread information. And it’s vital for our security to spread information quickly, but it’s also one of the many reasons why the shelf life of secrets today is much shorter than it used to be. And then just one final difference among the four of them: I recounted how, Ellsberg was careful in what he released and didn’t release and Snowden, the same thing. And also Snowden released it through journalists who were going to be careful about not revealing things like names of people who could be hurt. Manning was less careful and took more risks and I think while the sentence he got of thirty-five years is medieval and unconscionable – ridiculous! Thirty-five year sentence for what he did, but it is I think fair to say that the way he did was less careful than how Ellsberg had done it, and how Snowden did it.
Q: And this administration – the Obama Administration – has prosecuted more people for leaking classified information…
SCHWARZ: Yeah, you know, that’s used a lot and fairly, it’s used… I don’t know what one draws from that. I think there is probably more and more high-volume leaking now than there was. And I do think the Justice Department has allowed itself to be manipulated by some ideologues in the Justice Department. Like in the case of Thomas Drake, an NSA official, who told a reporter from the Baltimore Sun some examples of bad management, if not corrupt management, by the NSA of a program designed to deal with their most difficult problem, which is how do you get from the billions of pieces of information, enough information every day that, stacked together, I think could go to the Sun.
SCHWARZ: You know? It’s amazing! And the NSA failed to deal with that problem and employed a contractor who was too close to…. I think the Deputy Chief of the NSA. And so, Thomas Drake told a few non-national security details, but a few details relating to… he was exposing malfeasance and incompetence on a really important subject. So, I think because of the ideology of one particular prosecutor who, Holder and the people working for him should’ve watched closer, they had an indictment that could’ve led to thirty-five years in prison for, I think it was thirty-five, again, the amount that Manning actually got, for Drake. And that was just ridiculous! And no decent Department of Justice would do that.
Q: And they’ve also subpoenaed journalists’ telephone records and things like that.
Q: How important is journalism to piercing the secrecy that’s involved?
SCHWARZ: Well, I mean, you know, journalism has been essential through the whole democratic… America’s experiment with democracy, Jefferson recognized that; Madison recognized that; de Tocqueville in his young French aristocrat here to study prisons, but ends up studying the whole of American society, says that, “In Great Britain… in countries with an aristocracy, Great Britain and France and others, people are naturally held together by the allegiance to their lords…” In a democracy – thank goodness – we don’t have that. And de Tocqueville said, “Well, what holds America together is principally newspapers.” And you see through all our history and I… and my book spends a lot of time talking about the important of papers. And you see that the federal government subsidized newspapers, so that at one point newspapers by weight were 90% of the volume of what goes through the post offices, but only 1/9th of the revenue, because of the subsidies. And newspapers through our whole history have been vital. Now, they go up and they go down. And there was a big up during the so-called progressive period in the early 20th century, and then about in 1912 that ends. The muckraking magazines go out of business and for a long time, really until the late sixties and early seventies, journalism is in a dip, at least as far as exposing national stories. It may be they exposed more state and local stories. But journalism has been vital, and is vital today, and we have to worry about whether… we have to worry about whether investigative journalism is, through newspapers, is going to survive and if it doesn’t, are there other devices, like ProPublica, that will succeed in keeping…? Because we… we need the force of the media, the press, mostly newspapers – they are the best at it, or traditionally have been. More than television, it… television doesn’t do this quite as well, in general, I think.
Q: And that’s what I found so interesting about the book, is that the government, back in the day, realized the importance of a free and robust press and…
Q: …and actually subsidized it!
SCHWARZ: Yeah, yeah…
Q: Where here, the economics are causing difficulty in doing that kind of investigative journalism. So, last year, you combined with some other former staff members… Last year you joined with some other staff members from the Church Committee to call for a new Committee-type investigation, temporary Committee investigation. What do you think that type of investigation should include?
SCHWARZ: Well, it should go deep; fortunately, if you did it now, it… if you… I started calling for this back in Congressional testimony in '07 and '08. And if you’d done it then, it would’ve had the disadvantage of seeming to be targeted mostly on one administration of one particular party. If you did it now, you got a fuller record and I think that makes it more likely that you get a broad public support and bipartisan participation among the members of Congress. The existence of the existing intelligence committees makes it a little harder, I think, because, go back to the Church Committee: when Mansfield set it up in the Senate, he was very careful to include – and it was really in… a team of all stars, the eleven senators… he was very careful not to include people who had responsibility for supposedly overseeing the intelligence agencies. And he got away with that, the politics were such or… or they felt they didn’t wanna do it or… I don’t know. Today, I think having an investigation is made harder by the existence of the intelligence committees and certainly, I think it would be extraordinarily hard to do it without some participation by those people. But, of course, you can see in the Senate that it’s… like, right now, it’s the Judiciary Committee with Pat Leahy running it, that seems to be taking the lead in the Senate on the reform NSA legislation. But I just put forward as a point that I think doing a… special investigation is harder, because of the existence of the committees.
Q: Sure… and what do you… I mean, just look broadly at all the agencies? Or… is there something specifically….?
SCHWARZ: No, I’d… I’d look at all the intelligence agencies…
Q: Do a comprehensive review of the…?
SCHWARZ: …yeah, I’d do it comprehensive, and do it back over time and… and include the period of… why not include all the period after the Church Committee? So you’d pick up a lot and you learn something from those earlier lessons. I got a call from Tom Kane after he’d been appointed to run the Co-Chair, and be the Chair of the special 9/11 Commission. And I knew Lloyd Cutler, a great Washington lawyer who’d been counsel for what, three presidents? And a great private lawyer! And had recommended me as general counsel of the 9/11 Commission to Tom Kane. But I also knew that it wouldn’t be right for me to do that, because a 9/11 Commission would have to look at the question of whether the Church Committee’s reforms caused the failures. Now, they clearly didn’t, but nonetheless, it wouldn’t’ve been right for someone who had been part of the Church Committee to be… anyway, I just gave Tom Kane some advice; I had met him before when Ed Koch had him over for dinner at Gracie Mansion and I think he’s almost exactly the same age as me … and his older brother’s a co-board member of mine with the Natural Resources Defense Counsel. Anyway, I just gave him some advice about how to handle an investigation.
Q: And it would seem now, when you were describing sort of the environment…
SCHWARZ: That’s a story, by the way, I don’t think I’ve ever told anybody before.
Q: When you were talking about the environment that existed that gave the opportunity for the Church Committee to be successful, you talked about the leaks of the Pentagon Papers, where here we have the leaks of the Snowden records. You talked about the Vietnam War, where we have the experience of the Afghanistan and Iraq Wars. It’s very similar in a lot of ways.
SCHWARZ: But we also had the weakness of Jerry Ford, because of how he took office and what he… he could not appear as being obstructive to us. And, you know, is that true today? I don’t think so.
Q: Okay. If somebody wanted to read more about these issues, and to learn broadly about the issue of secrecy, the issue of intelligence activities, what would you have them read?
SCHWARZ: Well, I think my book is the most comprehensive treatment there’s ever been of it. I guess I would, on the issues of intelligence committees, I would read the work of Loch Johnson, and Frank Smist. On the intelligence community generally… what is his name? There’s a great writer, his name I forget right now, but… Alasdair Roberts! I think he’s a Canadian, and I think he’s very good on these issues. The Moynihan Report is valuable. I probably shouldn’t say this, but my book addresses the subject more comprehensively. Starting with the Garden of Eden, by the way… but mostly about this country.
SCHWARZ: More comprehensively than ever’s been done, and brings it up to date.
SCHWARZ: More than has ever been done.
Q: And, it’s a good read.
SCHWARZ: Yeah, well, I’m glad you think that.
Q: And that will be out in the spring?
Q: April, great. Is there anything I forgot to ask you?
SCHWARZ: Yeah, I think there was a question which, in my mind triggered… Did things change from the beginning of the Church Committee to the end of the Church Committee? And there were some interesting changes… not on the domestic front. On the domestic front, the government never tried to limit what we did. I mean, we had our dialogue about, “Is such and such a sentence in your report going to reveal the name of an informer in the NAACP?” That’s a hypothetical.
SCHWARZ: I mean, there was an informer in the NAACP but I don’t think we ever had a question like that. At least it was clear we didn’t reveal it. But, on the foreign front, starting roughly in the late fall of '75, our investigation having started in February, we had had the Assassination Report come out in November, probably, we’d begun our hearings. And in the late fall of '75, our foreign work, the government began to successfully crimp it a bit. I think they felt the House Committee’s mistakes had given them some extra tools, even though they didn’t have those tools against us. The assassination of the CIA Station Chief in Athens, I think, helped them. I’m quoted in Frank Smith’s book, which is about, in Congressional investigation, or in Congressional oversight, up to the '80s or so. And I’m quoted in Frank Smith’s book as saying, “The government ‑‑ the Administration ‑‑ danced on the grave of Welch,” who was the Station Chief, and they used that to curb our work on foreign intelligence a little bit. So while on covert action before that we’d covered covert actions in Cuba, and in the Congo, and in the Dominican Republic, and in Haiti, and in various other places, in Chile, we had done other work on the covert action, which we didn’t get to publically release. So, that didn’t happen, and by that time, the Committee had split into two sub-committees and I was putting all my energy into the domestic stuff, mostly the FBI, but also the CIA’s activities in the United States, and the NSA’s capturing of every telegram that left the United States. And I wasn’t any longer working on the foreign stuff. And that’s not the reason the two come out differently, but just, fortunately for me, on the work that I was doing, we didn’t have interference. But on the foreign work, there was a bit, and the government, it’s always, you know, ”What’s the atmosphere?" And, “How much can the Congress push without the Administration being able to make it a political issue?” And, “How much are they weak?” Or, “How much are they strong?”
Q: And with, I mean, what’s fascinating to me reading the Church Committee reports, is how dangerous these covert activities were, the domestic activities, to our democracy, as you say, that the foreign activities to our foreign relations. And yet, we seem to be involved at another time where the intelligence agencies are heavily involved in covert activities, both domestically and abroad, without recognizing those dangers. Are you an optimist about how we can re-establish democratic control?
SCHWARZ: Well, you know, my nature is, in the long run, to be an optimist. Maybe that’s a mistake, but how else can one go on if you’re not?
Q: Right. So, you think we’ll figure out ways to reestablish…?
SCHWARZ: Yeah, and also, if we had another major attack, we would face, you know, things that we haven’t even yet faced. If we have less major attacks, we live with them. I mean, they’re horrible… The Boston massacre, absolutely horrible. But, we’re handling it through law enforcement and so forth. But in the absence of some weapon of mass destruction successful attack, I think the passage of time helps. And it brings the natural inclination of the people in Congress to say, “No, we don’t want to, it’s not American to do those kinds of things.” Whatever, you know, whatever we’re talking about.
SCHWARZ: But I think the reaction to the Snowden revelations, you know, it’s not clear exactly how the law will be changed. But I think it will be better, and I think the debate is now about the details of what should be done rather than about, “Well, that should’ve been secret in the first place.”
SCHWARZ: And I think that’s a big plus, too.
Q: Great. Alright, well, thanks very much, Fritz.
Q: Thank you very much, it was terrific.