The move by Congress to renew the FISA Amendments Act for five more years without amendments came as a bitter disappointment to civil libertarians who believe that the Act emphasizes government surveillance authority at the expense of constitutional protections. Amendments that were offered to provide more public information about the impacts of government surveillance on the privacy of American communications were rejected by the Senate on December 27 and 28.
Beyond the specifics of the surveillance law, the congressional action appears to reflect a reorientation of intelligence oversight away from public accountability. The congressional intelligence committees once presented themselves as champions of disclosure. They no longer do so.
The first annual report of the Senate Select Committee on Intelligence, chaired by the late Sen. Daniel K. Inouye, stated in 1977 that “While most of the work of the Committee is, of necessity, conducted in secrecy, we believe that even secret activities must be as accountable to the public as possible.”
Of course, the question of how much accountability is “possible” has always been debatable. But the basic principle of maximum possible disclosure was endorsed by subsequent Committee leaders including Sen. Barry Goldwater and Sen. Daniel P. Moynihan, who also wrote in 1981 that “intelligence activities should be as accountable as possible to the public.” In 1999, Senators Richard Shelby and Bob Kerrey affirmed on behalf of the Intelligence Committee that “as much information as possible about intelligence activities should be made available to the public.”
But in recent years the Committee’s periodic statement of principles has changed in a subtle but significant way. In its most recent report in 2011, the Committee said it seeks “to provide as much information as possible about its intelligence oversight activities to the American public consistent with national security concerns.” Instead of disclosure and public accountability for intelligence activities, the Committee would promise only to reveal as much as possible about its oversight activities.
What makes this rhetorical shift noteworthy is that it seems to correspond in broad strokes to a shift in the character and activity of the Committee away from public accountability for intelligence. Past Committees did not always press for public accountability (and were not often successful when they did), and the current Committee has not been completely indifferent to it, but there does seem to be a perceptible trend.
The Senate Intelligence Committee used to be at the forefront of debates over public disclosure of intelligence. Demands for declassification — often for intelligence budget information — were a normal feature of annual intelligence legislation in the 1990s. Public hearings, including hearings with non-governmental witnesses, were commonplace. To varying degrees, Senators like Daniel Moynihan, Howard Metzenbaum, Arlen Specter, Bob Kerrey, and others were thorns in the side of U.S. intelligence agencies in support of public disclosure.
Over the past decade, however, the Committee’s priorities appear to have changed, to the detriment of public accountability. In fact, despite the Committee’s assurance in its annual reports, public disclosure even of the Committee’s own oversight activities has decreased.
In 2012, the Committee held only one public hearing, despite the prevalence of intelligence-related public controversies. That is the smallest number of public hearings the Committee has held in at least 25 years and possibly ever. A non-governmental witness has not been invited to testify at an open Committee hearing since 2007.
(A congressional official countered that in recent years confirmation hearings had provided the occasion for most public hearings by the Intelligence Committee, and that in 2012 there were simply no nominees requiring hearings. Meanwhile, the official noted, the Committee did include a provision to reauthorize the Public Interest Declassification Board in its markup of the 2013 intelligence bill. And the Committee is engaged with agency Inspectors General that are reviewing classification practices in the intelligence community and elsewhere. The Committee’s own web site has also been usefully supplemented with hearing records and reports dating back to the 1970s.)
When annual disclosure of the intelligence budget total did finally become a routine occurrence in 2007, it was principally through the legislative efforts of Senators Joe Lieberman and Susan Collins of the Senate Homeland Security Committee, not the Intelligence Committee. Similarly, efforts to strengthen oversight of intelligence by the Government Accountability Office were led by Senator Daniel Akaka, again from outside the Intelligence Committee.
(The Intelligence Committee did, however, legislate a requirement in 2010 for disclosure of the budget request for the National Intelligence Program. And it was cautiously supportive of an expanded role for GAO in intelligence oversight.)
Most recently, the Intelligence Committee conducted a multi-year investigation of the CIA’s post-9/11 detention and interrogation program. It is, said Senator Dianne Feinstein, the Intelligence Committee chair, “by far the most important oversight activity ever conducted by this committee.” But the resulting report “will remain classified and is not being released in whole or in part at this time,” she said December 13. Its importance is evidently independent of any public impact it might have.
(A congressional official said there is an intent to make portions of the report public over the coming months.)
Even in view of the contrary indications (noted above), and some others, the dominant trend as we perceive it is that public accountability in intelligence has been deemphasized.
Senator Feinstein made the point another way, when she said of the Committee that “We are the public.”
“I mean, we are the public check on the Executive Branch,” Sen. Feinstein said during the FISA reauthorization debate on December 27, explaining why she believed greater disclosure of information concerning government surveillance activities was unnecessary. “We are not of the intelligence community. We are the public, and it is our oversight, it is our due diligence to go in and read the classified material.”
Intelligence Committee Vice Chair Sen. Saxby Chambliss also said that the Committees themselves provided public oversight by serving as proxies for the public: “In matters concerning the FISA Court, the congressional Intelligence and Judiciary Committees serve as the eyes and ears of the American people. Through this oversight, which includes being given all significant decisions, orders, and opinions of the court, we can ensure that the laws are being applied and implemented as Congress intended.”
By these lights, public accountability is more or less superfluous. Senator Chambliss said that a report on the privacy impact of government surveillance advocated by Sen. Ron Wyden was unnecessary, because “If we do our job, there is absolutely no reason for this amendment–and we do our job.”
Members of the House Judiciary Committee last month expressed their own confidence in non-public intelligence oversight. They rejected a resolution introduced by Rep. Dennis Kucinich to require the Attorney General to produce legal justifications for the use of drones “relating to the practice of targeted killing of United States citizens and targets abroad,” a subject of recurring public controversy.
In a December 18 report, the Committee said the Kucinich resolution was unwarranted because “the House and Senate Intelligence Committees continue to conduct robust oversight into the drone program that targets terrorists and their associates.” Public controversy is beside the point.
How should one understand the apparent diminished interest in public accountability? It is hard to say. There is a strain of political commentary that characteristically invokes official bad faith as the sovereign explanation for all disfavored policy outcomes: Officials act the way they do — instead of the way I wanted them to — because they are power-hungry or compromised by financial interest, social affiliation, or personal ambition. This is usually a lazy and self-serving explanation (if my opponents are scoundrels, I must be okay) even if it is not always and altogether wrong.
Another possibility is that intelligence collection is much more fragile than is generally recognized. Even if that were true, however, it would not explain the broader trends — the declining number of public hearings on intelligence, the diminished focus on declassification, the abandoned (or muted) commitment to disclosure of “as much information as possible about intelligence activities.”
Nor does it fully explain the Senate’s categorical rejection last month of all of the proposed amendments to the FISA Amendments Act, which were about as undemanding as they could be. (The intelligence community said that one amendment to require preparation of an estimate of the number of American communications collected was not feasible or would entail privacy violations of its own). Most of the amendments would not have imposed any change in policy or any compulsory disclosure, but only certain reporting obligations, and even those had waivers for national security concerns. As far as oversight and accountability are concerned, these proposals were practically de minimis, of homeopathic proportions, and yet they were rejected by the Senate.
(Although Sen. Jeff Merkley’s amendment to promote declassification of opinions of the Foreign Intelligence Surveillance Court was among the rejected proposals, Sen. Feinstein said that she would work together with Sen. Merkley to help achieve that end.)
“What it comes down to is what we define robust congressional oversight in a program such as this to be,” said Sen. Ron Wyden of his amendment to the FISA Amendments Act, which was voted down on December 28.
“Plain and simple–we need more information,” said Sen. Mark Udall. “How else can we evaluate this policy? The American public has a right to know. And needs to know. How many Americans are affected by FISA? Are existing privacy protections working? Are they too weak? Do they need to be strengthened? These are vital questions. They need to be answered. And so far they have not been.”
Now, for the foreseeable future, they will not be answered, at least not to anyone outside of the intelligence committees.