Depending on which elected official you asked this week or last, the revelation that the NSA regularly collects U.S. phone records, and can easily access some private content like emails and chat transcripts from Internet companies, was either no big deal, an enormous shock to the conscience, or an “I told you so” moment.
For most members who don’t serve on one of the secretive intelligence committees and aren’t among the four highest ranking officials in Congress, the scope if not the existence of the programs came as a surprise. Those members weren’t prohibited from receiving official briefings about classified collections programs. But even if they took unusual interest in the issue, they had to seek out information, without easy access to the subject-area knowledge required to decipher what they’d learned, or the authority to share it with their staffs or other elected officials. The administration didn’t volunteer information, and these members’ generally don’t have aides with top-secret security clearances, let alone expertise in signals intelligence.
But even though intelligence committee members, along with the top four bipartisan legislative leaders, had much more detailed knowledge about all intelligence matters than most members, they too have differing accounts about the scope of these programs, the accuracy of the stories written about them, and even their own ability to conduct oversight of the NSA and the country’s most secret surveillance activities.“We’ve learned from the past that there’s a right way and a wrong way to give Congress the information we need to make decisions about our laws and policies, but I think we’re still a work in progress when it comes to the level of transparency needed for meaningful exchange about ongoing activities,” Sen. Jay Rockefeller (D-WV), who sits on and used to chair the Senate Intelligence Committee, told TPM last Thursday. “The Bush Administration launched programs without any legal authority at all and then would show just the Intelligence Committee chairs and vice chairs a few perfunctory flip-charts – which we weren’t allowed to discuss even with each other — just so they could later claim ‘Congress was briefed.’ That created a deep distrust, and for me some skepticism lingers. It took years of wrangling with the intelligence community to open briefings up to more Senators, and there is still a lot of resistance to sharing information more broadly and with the public. But the process works far better today than in the past. The FISA law we passed requires multiple regular reports from the agencies, so if we see irregularities or areas of concern, we can pursue those.”
It’s unusual for a member of the committee — even one who’s skeptical of the intelligence community’s most controversial practices — to critique the oversight process, even mildly. But reports and briefings are only as accurate and thorough as briefers are forthright and comprehensive — a variable that has hampered oversight efforts for years, according to members, aides and former aides who spoke with TPM. Likewise the sometimes arbitrary and legally dubious restrictions on what senior congressional aides with top-secret clearance are given access to, and what and to whom elected officials are allowed to tell even each other, can hobble the legislative branch’s efforts to understand what our spy agencies are really up to, let alone fulfill the government’s statutory obligation to fully and currently inform the Congress.
Like all people with security clearances, members of the House and Senate intelligence committees are briefed about classified information in SCIFs — Sensitive Compartmented Information Facilities. On Capitol Hill, they’re “vaults,” tucked away underground and closed to the press. According to multiple sources briefings are much more informal than typical oversight hearings, and quite often, because the information under discussion isn’t typically blockbuster in nature, the only people who show up are the committee chairs and vice chairs.
What transpires in these facilities — who briefs, how candid they are, how technical their information is, etc. — determines whether members and their cleared staffers obtain accurate understandings of U.S. intelligence programs. That epistemological problem introduces a high degree of uncertainty at the outset of the oversight process, and compounds other problems, such as the fact that committee members only hear from self-interested actors, can’t discuss what they’ve heard with outside experts or colleagues, and can’t affect changes in law without buy-in from the committee chairs at the very least.
“Sometimes these briefings are a game of 20 questions,” former Rep. Jane Harman (D-CA), who used to chair the House Permanent Select Committee on Intelligence, told Reuters. “If you don’t ask exactly the right question, you don’t get the answer.”
On all issues, across Congress, members rely on staff for subject-area knowledge. Between politicking and fundraising and traveling, it’s unrealistic to expect that every member has mastered all of the nuances of the issues their committees address. But most issues don’t require top-secret clearance. And here, members of the committee run into problems. First, their lawyers or aides with clearance aren’t typically techies, and their aides with technical expertise don’t typically have clearance. So there’s a skills mismatch. Imagine a scientific paper undergoing peer review by law professors.
The problem gets even bigger when staff is denied access, and manifests in different ways depending on whether or not the member serves on the committee or not. Senior aides to members of the intel committees have access to a great deal of the intelligence community’s operations — including, in theory, the sorts of collection programs revealed by Edward Snowden. But the executive branch can pressure Congress to exclude these aides, and because the executive branch controls the information, Congress often accedes. They do as a matter of course when the so-called Gang of Eight (the committee chairs and vice chairs, House and Senate Minority Leaders, House Speaker and Senate Majority) are briefed on covert actions.
“The level of interest from members of Congress determines how robust the oversight is of the intelligence programs,” said Mieke Eoyang, a former staffer on the House Permanent Select Committee on Intelligence who is now the director of national security at Third Way, the centrist think tank. “Members of Congress must ask the follow up questions, and insist on access to programs in order to conduct thorough oversight. The intelligence community may not anticipate what questions members would ask, nor do they have the same sensitivity to the public’s concerns on privacy violations. If the few members of Congress who know don’t ask the questions, no one will.”
Members without regular access to classified information can’t rely on staff at all when they’re invited into special or all-member briefings. Which means they don’t know what to ask, or even if the briefings are worth their time.
“I think the executive branch position that a member of Congress may look at classified information but a congressional staffer may not is wholly unpersuasive,” said Lou Fisher, who is Scholar in Residence at the Constitution Project, and for four decades was an expert in separation of powers issues at the Library of Congress. “Obviously non-elected executive branch staffers read this type of information all the time. Members of Congress should tell the President: “‘our staffers need to see these documents. So should ours.’ Also, probably 95% or more of classified documents leak from the executive branch.”
Moreover the committees’ restrictive rules limit the extent to which their members and aides are allowed to communicate what they learn in meetings with members of other committees. Last week, in an extremely broad interpretation of those rules, the Senate Select Committee on Intelligence declared that a former senior aide could not even discuss the oversight process in general terms with TPM. This article is therefore based on separate research and interviews with other sources.
The access issue isn’t just a run of the mill government turf war. It’s an enduring source of confusion. We saw the consequences play out publicly in a little-noticed exchange at a House Judiciary Committee hearing last Thursday, when Rep. Jerrold Nadler (D-NY) interrogated FBI Director Robert Mueller about the steps the government must take between collecting metadata on telephone calls and wiretapping a person of interest.
“If you’ve gotten information from metadata and you as the result of that think that ‘Gee, this phone number … looks suspicious and we ought to actually get the contacts of that phone, do you need a new specific warrant?”
“You need at least a national security letter. All you have is a telephone number. You do not have subscriber information. So if you need the subscriber information you would have to get probably a national security letter to get that subscriber information. And then if you wanted to do more … then you have to get a particularized order from the FISA court directed at that particular phone of that particular individual.”
“We heard precisely the opposite at the briefing the other day. We heard precisely that you could get specific information from that telephone simply based on an analyst deciding that and that you didn’t need a new warrant,” Nadler said. “I asked the question both times and I think it’s the same question.”
Nadler is the top Democrat on the Judiciary subcommittee on the Constitution, Civil Rights and Civil Liberties. He is not on the intelligence committee. But he got brief access to the program at a classified all-member briefing earlier this week.
TPM first reached out to Nadler’s staff seeking clarification about the discrepancy on Thursday evening. Over the weekend, other news outlets reported on the exchange prior to any clarification, suggesting Nadler had revealed the existence of a warrantless wiretapping program. As it turns out, the exchange was actually a real-life example of how misinformation can flourish when hearings are conducted in secret and staffers with issue expertise are forbidden from participating.
“I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant,” Nadler said on Sunday, after the confusion had apparently been resolved.
This is a problem Senate intelligence committee Chair Dianne Feinstein (D-CA) addressed herself in a recent appearance on ABC News.
“We had an intelligence committee meeting on Thursday [June 6], which I opened up to everybody and 27 senators came,” she said. ” You know, we informed them that every senator, the material is available. They can come and see it. One of the strictures with how they classified stuff is no staff. I think that should be changed so that intelligence committee staff can come in with the member and go over and review the material.”
At an October 2009 public hearing of the House Intelligence Subcommittee on Intelligence Community Management, Britt Snider, a former CIA inspector general, explained the pitfalls of Congressional subservience to the executive branch when it comes to the most sensitive intelligence issues.
“[I]n especially sensitive cases, the president has the option of providing notice of covert actions to a smaller group. It doesn’t say what this group of — this smaller group may do with the information that the executive branch has told them. In fact, it’s told them they can’t do anything with the information. And over the years, the gang of eight has acquiesced in what the executive branch has told them,” he said.
I think personally this has been a mistake because when — what has happened, it has effectively marginalized congressional oversight. It’s meant the eight congressional leaders can only react to what they hear, without the advice of their professional staffs, without the advice of knowledgeable colleagues.
And I think this is difficult for them to do, coming at it cold, having it presented to them in the most benign way possible. If they decide they have a problem, they have to be able to articulate on the spot what that problem is in a convincing way.
If they later decide that they have a concern, then they have to take it upon themselves to go back and raise it with the administration. Again, they’re going to have to rely on their own memory because they weren’t allowed to take notes at the briefings and there is no record of the — of what they were told that they have access to.
And so it’s — it’s just — very few, I think, congressional leaders are going to be willing or able to do this. But rest assured, if — if whatever program they’ve been briefed about subsequently goes south, their buy-in will be touted by the administration very prominently.
I just simply don’t think this is fair to the members involved.
This can breed mistrust and uncertainty. Since Edward Snowden’s disclosures appeared in The Guardian and the Washington Post, we’ve heard a variety of accounts both from members who were aware of the programs previously, and those who’ve learned about them in subsequent briefings. We’ve heard both that the programs aren’t nearly as expansive as portrayed in the press and also that they’re just “the tip of the iceberg.”
In all likelihood that reflects substantive differences between members who want to rein in government surveillance and those who support current policies. But it also reflects the fact that members themselves don’t necessarily know what they think they know.
“I have long argued that the intelligence community can, and should be, much more open about how they’re working to keep Americans safe from terrorists and the lengths they go to for protection of civil liberties,” Rockefeller told me. “I want them to use this recent turn of events as a chance to open up further.”
This article has been updated.