Thirty years ago, on April 26, 1976, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, delivered its final report detailing the lawlessness of U.S. intelligence agencies and the need for Congress to reassert the Constitutional system of checks and balances to order to rein in the cloak-and-dagger excesses of the executive branch of the federal government.
The committee, mercifully referred to by the last name of its chair, U.S. Senator Frank Church, D-Idaho, produced fourteen reports on the formation of U.S. intelligence agencies, the manner in which they had and were continuing to operate, and the abuses of law and of power — up to and including murder — committed by these agencies in Chile, the Congo, Cuba, Vietnam and other nations that experienced the attention of U.S. authorities in the Cold War era.
The committee also made 96 recommendations for how to do that. Some of those recommendations, such as the committee’s call for creation of a permanent Senate Select Committee on Intelligence and for a ban on assassinations of foreign leaders, were implemented. But, as the current controversy over President Bush’s warrantless wiretapping program illustrates, the potential abuses about which the Church Committee warned were not entirely — nor even adequately — thwarted.
It was not for lack of trying by Senator Church, one of the most courageous legislators in American history, and his colleagues on the committee. As Senator Church said when the committee completed its work: “The United States must not adopt the tactics of the enemy. Means are important, as ends. Crisis makes it tempting to ignore the wise restraints that make men free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened.”
The fundamental charge of the Church Committee to the Congress and the American people was not found in the details of the reports specific allegations and recommendations. Rather, it was in the committee’s bold reassertion of the founding principle of the Republic — that only by checking and balancing the excesses of the executive branch can basic liberties be defended.
To renew the inner strength of the nation, the Church Committee first recalled the threats that arise when the executive branch is allowed to operate in secrecy and without constraint:
The natural tendency of Government is toward abuse of power. Men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty.
Our constitutional system guards against this tendency. It establishes many different checks upon power. It is those wise restraints which ‘keep men free. In the field of intelligence those restraints have too often been ignored.
The three main departures in the intelligence field from the constitutional plan for controlling abuse of power have been:
(a) Excessive Executive Power.
In a sense the growth of domestic intelligence activities mirrored the growth of presidential power generally. But more than any other activity, more even than exercise of the war power, intelligence activities have been left to the control of the Executive.
For decades Congress and the courts as well as the press and the public have accepted the notion that the control of intelligence activities was the exclusive prerogative of the Chief Executive and his surrogates. The exercise of this power was not questioned or even inquired into by outsiders. Indeed, at times the power was seen as flowing not from the law, but as inherent, in the Presidency.
Whatever the theory, the fact was that intelligence activities were essentially exempted from the normal system of checks and balances. Such Executive power, not founded in law or checked by Congress or the courts, contained the seeds of abuse and its growth was to be expected.
(b) Excessive Secrecy.
Abuse thrives on secrecy. Obviously, public disclosure, of matters such as the names of intelligence agents or the technological details of collection methods is inappropriate. But in the field of intelligence, secrecy has been extended to inhibit review of the basic programs and practices themselves.
Those within the Executive branch and the Congress who would exercise their responsibilities wisely must be fully informed. The American public, as well, should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality.
Knowledge is the key to control. Secrecy should no longer be allowed to shield the existence of constitutional, legal and moral problems from the scrutiny of all three branches of government or from the American people themselves.
(c) Avoidance of the Rule of Law.
Lawlessness by Government breeds corrosive cynicism among the people and erodes the trust upon which government depends.
Here, there is no sovereign who stands above the law. Each of us, from presidents to the most disadvantaged citizen, must obey the law. As intelligence operations developed, however, rationalizations were fashioned to immunize them from the restraints of the Bill of Rights and the specific prohibitions of the criminal code. The experience of our investigation leads us to conclude that such rationalizations are a dangerous delusion.
Senator Church was even blunter in his rejection of the “spin” that would have Americans believe their government is protecting them or spreading democracy when it employs secret electronic eavesdropping at home or “covert action” abroad. Covert action, explained the Idaho Democrat, is nothing more than “a semantic disguise for murder, coercion, blackmail, bribery, the spreading of lies, whatever is deemed useful to bending other countries to our will.”
The Church Committee’s plan to counter the abuses of the executive branch boiled down to a call for Congress to recognize anew that:
The Constitutional amendments protecting speech and assembly and individual privacy seek to preserve values at the core of our heritage, and vital to our future. The Bill of Rights, and the Supreme Court’s decisions interpreting it suggest three principles which we have followed:
(1) Governmental action which directly infringes the rights of free speech and association must be prohibited. The First Amendment recognizes that even if useful to a proper end, certain governmental actions are simply too dangerous to permit at all. It commands that “Congress shall make no law” abridging freedom of speech or assembly.
(2) The Supreme Court, in interpreting that command, has required that any governmental action which has a collateral (rather than direct) impact upon the rights of speech and assembly is permissible only if it meets two tests. First, the action must be undertaken only to fulfill a compelling governmental need, and second, the government must use the least restrictive means to meet that need. The effect upon protected interests must be minimized.
(3) Procedural safeguards — “auxiliary precautions” as they were characterized in the Federalist Papers — must be adopted along with substantive restraints. For example, while the Fourth Amendment prohibits only “unreasonable” searches and seizures, it requires a procedural check for reasonableness-the obtaining of a judicial warrant upon probable cause from a neutral magistrate. Our proposed procedural checks range from judicial review of intelligence activity before or after the fact, to formal and high level Executive branch approval, to greater disclosure and more effective Congressional oversight.
It is notable that Senator Church was especially concerned about the threat posed by the National Security Agency if a future president were to abuse those powers.
“I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss,” explained Church. “That is the abyss from which there is no return.”
Three decades after the Church Committee submitted its final report, President Bush admits to ordering the NSA to spy on the telephone conversations of Americans on American soil without obtaining warrants.
Most of Congress stands idly by.
Not so the senator who has most aggressively challenged the Bush administration’s reckless disregard for the Constitution that provides Americans with both a Bill of Rights and a system of checks and balances to protect them.
Senator Russ Feingold, the Wisconsin Democrat who has asked the Senate to censure Bush for ordering the NSA to launch the warrantless wiretapping program, marked the anniversary of the issuance of the Church Committee’s final report by describing the committee’s work and the challenge to executive excess that it produced as “a watershed moment that spurred Congress to assume its critical role in overseeing the U.S. intelligence community.” In particular, he noted, “The Church Committee’s report also led to legislation requiring the executive branch to inform the congressional intelligence committees of all intelligence activities.”
“Yet,” Feingold added, “for over four years, the Bush Administration has ignored this law, hiding its illegal warrantless surveillance program from the full committees, and continuing to deny the committees critical information. At a time when Congress has failed to assert its constitutional and statutory role in conducting intelligence oversight, we should recall the groundbreaking efforts of the Church Committee, and the responsibilities that came with the establishment of the congressional intelligence committees. The American people have entrusted us to protect them from our enemies while ensuring that our government upholds the law and the Constitution. We must renew our commitment to that charge. As Senator Church said 30 years ago today, ‘Our experience as a nation has taught us that we must place our trust in laws, and not solely in men. The founding fathers foresaw excess as the inevitable consequence of granting any part of government unchecked power.'”