“The men and women of America’s intelligence agencies are overwhelmingly dedicated professionals,” Ron Wyden said on Wednesday, before proceeding to excoriate their bosses in front of the Senate Intelligence Committee. Addressing Director of Intelligence James Clapper, CIA Director John Brennan and FBI Director James Comey, Wyden continued,
“They deserve to have leadership that is trusted by the American people. Unfortunately, that trust has been seriously undermined by senior officials’ reckless reliance on secret interpretations of the law and battered by years of misleading and deceptive statements that senior officials made to the American people. These statements did not protect sources and methods that were useful in fighting terror. Instead, they hid bad policy choices and violation of the liberties of the American people.’
With the future of the surveillance programs disclosed by Edward Snowden still uncertain, the ball is very much in Congress’s court. Specifically, in the Intelligence And Judiciary Committees, which have critical oversight roles over the National Security Agency and others. The stakes are higher than the individual programs revealed by Snowden, however. In question is Congress’s ability to act as an effective watchdog over an expanding national security state.
Wednesday’s hearing nicely showcased the two major hurdles to congressional oversight. The first, as Wyden argued, is senior intelligence officials. The second is the congressional committees, which face an institutional mismatch with the intelligence community and whose members often seem more committed to protecting, rather than scrutinizing, the agencies they are tasked with overseeing.
First, a brief history. After revelations about abuses by the CIA and other agencies in the 1970s, Congress struck what Stephen Vladeck, a professor of law at American University, calls a “grand bargain,” to accommodate the paradoxical need to submit secret programs to democratic oversight. New legal constraints on intelligence activities would be enforced not in public but instead behind the veil by the intelligence committees and the Foreign Intelligence Surveillance Court (also known as the FISA court). As Colorado Senator Mark Udall said at the Intelligence Committee hearing, “This committee was created to address a severe breach of trust that developed when it was revealed that the CIA was conducting unlawful domestic searches.”
The Snowden leaks indicate the bargain has broken down. “In essence, the delicate balance Congress sought to strike thirty-five years ago now appears to be tipped, rather decisively, in favor of the intelligence community,” Vladeck explained in an e-mail.
Intelligence officials have done some of that tipping themselves, by withholding information from the public and lawmakers. On Wednesday, Wyden said the committee had been “stonewalled” by intelligence officials; indeed, none of his questions received direct answers, although Wyden did receive promises from officials to get back to him by specific deadlines. Wyden also cited several incidents in which officials had given inaccurate testimony in public hearings. Last March, for example, James Clapper told Wyden that the NSA did “not wittingly” collect data on American citizens, a claim we now know from the Snowden leaks to be false.