The Secret Government
In 1976 the Senate created the Select Committee on Intelligence, and the House followed suit with its own Permanent Select Committee on Intelligence a year later. Also in 1976 President Ford signed Executive Order 11905, which flatly stated, "No employee of the United States Government shall engage in, or conspire to engage in, political assassination." Two years later, Congress passed and President Carter signed FISA, which provided clear procedures for covert action, surveillance and oversight. The law created the special FISA court, which grants warrants for wiretapping and surveillance of anyone on American soil as well as Americans abroad. The Church Committee's revelations also had a profound effect on the bureaucratic culture of the CIA, NSA and FBI. At all three agencies, internal legal controls were put in place requiring layers of attorneys to sign off on any possibly questionable activities.
But for all these needed reforms, it's impossible to look at the past eight years and conclude they were sufficient. If cold war presidents were surreptitious and/or cavalier about the lawlessness of their actions, the Bush administration perfected a kind of perverse legalism, using sympathetic lawyers to decree legal that which was manifestly illegal. It was an ingeniously devious approach. By relying on John Yoo, a loyal ideologue inside the OLC, Cheney et al. were able to perform an end run around the extensive legal checks and restraints created precisely as a response to the Church Committee's findings. Indeed, the reason the infamous OLC memos are so garishly specific is that CIA lawyers, still operating with a memory of the Church Committee, were insistent on obtaining explicit sign-off for every action and technique that they (quite rightly) believed to be of dubious legality.
Similarly, Congressional oversight proved no match for a determined executive. Many critics from across the ideological spectrum, from Clarke to Scheuer, note that this is at least partly because Congress often would rather not know what is going on behind the curtain. But the controversy over just what House Speaker Nancy Pelosi knew about the CIA's use of torture, and when she knew it, underscores how dysfunctional the notification system has become. Created as part of the Intelligence Oversight Act of 1980, the so-called Gang of Eight system allows a president, under emergency circumstances, to restrict briefings on covert activities to the leader of each party in both houses and the top member of each party of the House and Senate intelligence committees. What was intended as a limited briefing to be given only temporarily during crises has emerged, instead, as the standard.
Clarke explained its shortcomings to me this way: "Essentially what happens, you're a member of the Gang of Eight. You get a phone call: 'We have to come and brief you.' They ask you to go to the vault. They brief you. You can't take notes, you can't have your staff there and you can't tell anybody." In addition, each member is briefed separately and individually, so they can't even discuss the briefing and ask questions in a group setting. "That's oversight?" Clarke asks. "That's a pretense at oversight. That's a box check. The law required us to do that, and we did this."
That "box check" allowed the Bush administration to claim that Democrats in Congress signed off on many of the most obviously illegal programs, from warrantless wiretapping to torture. Democrats can counter that they were barred by law from acting on whatever they knew. In other words, both sides can claim they fulfilled their legal duties.
"One of the things that would be interesting for a modern version of the Church Committee," says Robert Borosage, who worked at the Center for National Security Studies to help publicize the original committee's findings, "was that they'd be forced to confront the fact that a lot of the reforms passed after the first one have failed. So the question becomes, What do we do now?"
While many of the legal and institutional reforms ushered in by the Church Committee have been degraded and evaded, I believe it would be a mistake to argue that the committee failed. Its most enduring legacy is the political and cultural understanding of the relationship between secrecy and abuse; it narrated a moral fable about absolute power corrupting absolutely.
Public debates over intelligence are qualitatively different from other policy discussions. In a debate over whether, say, the economic stimulus has been effective, there is a presumption that all participants are working from a common set of data--GDP growth, unemployment, government spending, etc.--but with different interpretations and emphases. Such is not the case when the issue is the effectiveness of intelligence programs or the scope of covert activities. Those debates are conducted on fundamentally unequal footing. Critics may charge that torture is counterproductive and produces bad intelligence, but defenders of the secret government can wave away such concerns by saying, more or less, You don't know what we know.
What the Church Committee did was to eliminate this inequality by wrenching an entire segment of the state into the light of day. It created a universally accepted set of facts, a canonical public record that turned the secret conversations of the powerful and initiated into the material for a broad debate. It brought the world of intelligence into the public sphere, the place where self-governance ought to take place.
Selling a contemporary inquiry modeled on the Church Committee won't be easy. Since the mid-1970s the right wing has crafted a deeply distorted but potent fable about its impact and legacy. The tale goes like this: the inquisition pursued by the Church Committee subjected intelligence agencies to scorn and burned the agents and analysts. "In the years that followed, it was extremely difficult to get FBI agents to volunteer for counterterrorism assignments," argued two ex-FBI officials in a March op-ed in the Washington Times. "The risk-avoidance culture and excessive restrictions on gathering intelligence that resulted from the Church hearings and other congressional attacks on the intelligence community were major factors in our failure to prevent the Sept. 11 attacks.... [A] new Church Committee-like public inquiry might easily have a similar chilling effect on our ability to recruit good people for future counterterrorism activities."
It's not hard to find lots of people within the intelligence community who will give you more or less the same line. Richard Clarke has little patience for it. "What bothers me," he says, "is the CIA's tendency whenever they're criticized to say, If you do your job, if you do oversight seriously--which Congress almost never does--then we'll pout. Some of us, many, will not just pout; we'll retire early. Our morale will be hurt." And if morale is hurt and the agencies are gutted, they argue, the country will be exposed to attack. In other words: "If you, Congress, do oversight, then we'll all die. Can you imagine FEMA or the agricultural department saying we're all going to retire if you conduct oversight?" Clarke asks in disbelief.
The principle of oversight aside, the right-wing story about the committee ruining intelligence capabilities for a generation posits a golden age of über-competent intelligence-gathering that simply never existed. The activities described in the committee report, more often than not, have a kind of Keystone Kops flavor to them. "From its beginning," says Clarke, "when [the CIA] does covert action as opposed to clandestine activity...it regularly fucks up. I remember sitting with [Defense Secretary] Bob Gates when he was deputy national security adviser, and he said, I don't think CIA should do covert action; CIA ought to be an intelligence collection and analysis [agency]."
At the peak of its cold war powers, the American security apparatus was able to attain all kinds of information about the Russians (secret information that KGB files have subsequently shown the Russians knew we knew) but was unable to learn the most basic facts about "the enemy." We failed to anticipate the invasion of Afghanistan and routinely overestimated the strength of the Soviet economy. Indeed, the failure to understand and foresee the internal pressures on the Soviet Union may be the greatest failure of US cold war intelligence, one that had absolutely nothing to do with the Church Committee and its aftermath.
In his insightful 1998 book Secrecy, neocon patron saint Daniel Patrick Moynihan argues that by cordoning off discrete pieces of information, secrecy actually impedes intelligence-gathering rather than facilitates it. "Secrecy is for losers," Moynihan concludes. "For people who don't know how important information really is. The Soviet Union realized this too late.... It is time to dismantle government secrecy, this most pervasive of Cold War-era regulations."
It's hard to imagine that the White House would be enthusiastic about such an undertaking. Obama has insisted, routinely, unwaveringly, that he is "more interested in looking forward than...in looking backwards." At one level this seems a shocking abrogation of the executive branch's chief constitutional responsibility, to "take care that the laws be faithfully executed." But presumably the thinking goes something like this: the president has a limited amount of political capital, and he can spend it on major, once-in-a-generation reforms of the American social contract--universal healthcare and cap and trade--or he can spend it pursuing justice for the perpetrators of the previous administration's crimes. As morally worthy as the latter might be, it won't get anyone healthcare or stop the planet from melting; it won't provide a new foundation for progressive governance.
But as self-consciously pragmatic as this posture is, it's proving wildly impractical to implement. The reason is that the White House has limited control over when and what is revealed about crimes and misdeeds of the Bush years, and every time a new revelation hits the papers, such as the recent disclosures of Blackwater's involvement with the CIA assassination unit and interrogators' use of "mock executions," it dominates the news cycle. Since the White House itself has defined such revelations as a "distraction," every time they are in the news it is, by its own definition, distracted.
The benefit of a new Church Committee would be that it would corral these "distractions" into a coherent undertaking, initiated in Congress, within a fixed time period. It would also provide a framework for systematic investigation of the policies rather than selective prosecutions of those at the bottom of the hierarchy who carried them out.
"Because try as Obama [may] to avoid investigations and looking backwards, he's being dragged into it over and over again," says Clarke. "It would be better for him if Congress just said, You know, Barack, we're just gonna provide these wise men, give them subpoena authority. It's not on you, Barack. There was this excess and that excess and a pattern of excesses, and you know, it clears the air.... Now you have the impression that there's a bunch of stinking turds under the rug."
Perhaps the greatest argument for such an undertaking is the simplest: citizens have a right to know what crimes have been committed in their names. Many of the relevant and damning facts have already been conclusively established. We know we waterboarded Abu Zubaydah, a borderline mentally ill member of the Al Qaeda entourage, eighty-three times in one month. We know the NSA spied on an untold number of Americans without warrants. We know that the CIA sent captured detainees to the custody of regimes with abysmal human rights records, with the explicit understanding they would be tortured.
The Church Committee came at a time when the public was in the midst of a wrenching (and necessary) loss of innocence. But in our age, secret government crimes and plots are almost a cliché. Polling shows trust in government has returned roughly to its mid-'70s nadir. The danger now isn't naïveté but cynicism--that we just come to accept that the government will commit crimes in our name under the cover of secrecy and that such activities are more or less business as usual, about which nothing can be done. But something can be done. Something must be done. And Congress should do it.