Edward Snowden’s 2013 release of once-secret documents about U.S. intelligence surveillance of the private communications of Americans and non-U.S. persons focused much-needed attention on the problem of how to control the burgeoning U.S. surveillance-industrial complex.
But while the USA Freedom Act began to limit national security surveillance to some extent—and we hope for more limits given that FISA Section 702 is scheduled to expire in December 2017—it did little to address the underlying problem of excessive executive branch secrecy. We remain largely in the dark about many of the facts of surveillance conducted by the U.S. government and its foreign intelligence community allies.
Clearly, Congress cannot fulfill its vital role in the constitutional scheme of separation of powers without clear knowledge about intelligence activities. The House Permanent Select Committee on Intelligence (HPSCI) was created in 1977 to exert meaningful oversight over the intelligence community in the wake of revelations of wide-scale abuses and violations of law.1 HPSCI and its Senate counterpart, the Senate Select Committee on Intelligence, were intended to consolidate review of intelligence matters, inform the entire Congress of intelligence activities and hold public hearings to inform the broader public.
Since 9/11, however, it’s been obvious that these special intelligence committees have not effectively overseen the NSA, FBI, and other members of the intelligence community.
A recent Guardian article aptly summed up the problem:
The intelligence committee is a culture all to itself. Unlike most congressional panels, the vast majority of its work occurs in secret. It is term-limited, so members’ expertise levels vary. The byzantine rules of classification restrict staffers who might bolster legislators’ knowledge from accessing significant relevant information. Membership, particularly on committee leadership, instantly boosts the profile of ambitious legislators, who become de facto surrogates for intelligence officials on cable news. All of this means that a committee tasked as the primary avenue for imposing accountability on secret agencies faces the ever-present risk of becoming captive to the agencies they oversee.
Today, we join with Demand Progress, R Street Institute, and FreedomWorks in a white paper calling on the House of Representatives to reinvigorate its commitment to provide a meaningful check on executive-branch surveillance and reform how it conducts oversight over intelligence matters. This paper is complemented by a letter from 33 organizations endorsing stronger oversight of the intelligence community.
When the House convenes for the 115th Congress in January, it should update its rules to enhance opportunities for oversight by HPSCI members, by members of other committees with related jurisdiction, and by all other representatives. The House also should establish a select committee to review how it engages in oversight.
EFF has previously called on Congress [.pdf] to engage in a thorough review of intelligence community activities based on the model set by the Seventies-era “Church Committee,” and we continue to urge such large-scale review.
But internal reform of House rules that currently make it exceedingly difficult for the vast majority of our elected representatives to know and understand what the intelligence community is doing can also pave the path to meaningful reform.
For example, most HPSCI members lack a personal staffer for their HPSCI work, which requires a security clearance, and instead depend on committee staff—hired by and answerable to the HPSCI chair. Yet when eight HPSCI members sought funding ($125,000) to allow a staffer from each member's personal office to obtain sufficient clearance to assist with intelligence oversight, that request went nowhere, as far as we know.
Under our constitution of separated powers, access to information is essential to democratic accountability. We were fortunate that Snowden leaked significant information about surveillance abuses, but oversight by whistleblower revelations is not a sustainable strategy. Without reform of excessive secrecy and overclassification, the window of transparency provided by the Snowden troves will close as the government creates new surveillance programs protected by secrecy and invulnerable to Congressional oversight.
- 1. For examples of the abuses, see the Report of the Select Committee to Study Government Operations with Respect to Intelligence Activities, also known as the "Church Committee" report, S Rept. 94-755 (1976), detailing assassination plots against foreign leaders, surveillance of domestic political activities and much more, available at http://www.intelligence.senate.gov/churchcommittee.html; see also the Pike Committee Report, available in print format from the Library of Congress at http://www.worldcat.org/title/cia-the-pike-report/oclc/3707054.
