On Thursday, September 26, the Senate Select Committee on Intelligence (SSCI) did an unusual thing: it held an open hearing. According to the committee's website, it was only the third open hearing this year, compared to 44 closed hearings. Even more unusually -- in fact, for the first time since Senator Dianne Feinstein became chair of the committee in January 2009 -- two non-governmental witnesses testified at the hearing.
Neither witness was particularly critical of the intelligence community. Tim Edgar, a visiting fellow at Brown University, said he believed that the NSA's "new collection is vital, helping to stop 54 terrorist attacks worldwide, including 13 in the United States." Edgar did recommend several reforms to increase the public's trust in the program. Benjamin Wittes, the editor-in-chief of Lawfare, disagreed even with those changes. Wittes recommended that the committee "defend the existing structures, publicly and energetically... not to race to correct imagined structural deficiencies in the system."
Feinstein is a prominent defender of the NSA, and it cannot be a coincidence that the committee did not hear from anyone who argued that the NSA's surveillance was illegal or unconstitutional. Journalist Glenn Greenwald wrote that the hearing showed SSCI to be "annexed, captured, corrupted" by the intelligence community.
That is an oversimplification; some members of the committee and their staffs do take their oversight role quite seriously. Senators Ron Wyden's and Mark Udall's opposition to surveillance excesses contributed to some changes even before Edward Snowden's disclosures. Feinstein, a defender of the intelligence community on issues of surveillance and drones, is far more critical of the CIA's past use of torture. Last December, by a 9 to 6 vote, the committee adopted a still-classified 6000-page report on the CIA's detention and interrogation program that Feinstein called "by far the most important oversight activity ever conducted by this committee." Despite the CIA's strong objections to the report's conclusions and its public release, Feinstein announced in July that she believed the study remained on "firm ground" and she planned to seek declassification of its 300-page executive summary.*
At one of SSCI's other two open hearings this year, on the nomination of John Brennan to head the CIA, several senators denounced the CIA for deceiving them or failing to disclose crucial information in classified hearings and briefings. Senator Barbara Mikulski told Brennan that with the exception of Leon Panetta, "I've been jerked around by every CIA Director... misled, misrepresented, had to pull information out." Senator Jay Rockefeller, the former chairman of the intelligence committee, said the CIA's interrogation program had been "sold" to "Congress with grossly-inflated claims of professionalism and effectiveness." Rockefeller and Feinstein both complained of the exclusion of committee staff -- and in some cases committee members -- from key briefings.
At the same hearing, though, Feinstein uncritically cited the executive branch's assertion that "the number of civilian casualties that have resulted" from targeted killing "has typically been in the single digits." This claim contradicted virtually all NGO estimates, and was difficult to reconcile with detailed press accounts of some specific strikes. Feinstein said she was unfamiliar with a New York Times story which said that the executive branch counted all "military aged males" in the vicinity of a strike to be militants unless there was posthumous proof of their innocence. A reporter asked why, given the inaccuracy of the intelligence community's reports about "enhanced interrogation," Feinstein was confident that their civilian casualty estimates were accurate. "That's a good question, actually," she replied.
It may be that the intelligence community's estimates are correct, and do not rely on presuming drone victims' guilt. But neither intelligence committee has ever held an open hearing about the drone program. Intelligence committee staffers have monthly meetings where they review footage of strikes, CIA intelligence reports and casualty assessments. There is no public evidence, though, that they have ever spoken to people who suffered injuries or lost family members in U.S. strikes, their counsel, or witnesses from the affected countries. It is unknown what, if any, investigation the committees have done into notorious strikes like the killing of 16-year old U.S. citizen Abdulrahman Awlaki, or the December 2009 cruise missile strike in Al-Majala, Yemen that killed dozens of civilians.
SSCI has never heard testimony from any of the attorneys, NGOs, and journalists]who tried to challenge NSA surveillance in open court, only to be met with invocations of official secrecy. It has never heard testimony from technology companies that shut down their secure email programs because they could not adequately protect their customers' privacy.
At a recent Senate Judiciary Committee hearing, former SSCI member Senator Sheldon Whitehouse said that the intelligence committee did not hear from outside witnesses because "in deeply classified programs there was no way that you could bring a different view in."
But Loch Johnson, who worked as a special assistant to Senator Frank Church during the investigation that led to the creation of the Congressional intelligence committees, disagrees. Johnson told the Washington Post that the Church Committee showed that "you can hold public hearings on NSA. You just have to do it carefully."
Given the amount that remains classified about targeted killing and the NSA's activities, closed hearings will remain essential. In an open hearing, senators would not be permitted to ask witnesses detailed questions that would disclose what they had learned in classified briefings. Intelligence officials might refuse to respond to the witness's testimony. It is logistically difficult to arrange testimony from witnesses from Yemen, Pakistan and other foreign countries.
But whatever the difficulties, hearing from non-governmental witnesses is worth the effort and long overdue. It would greatly improve committee staff's ability to ask the right questions when they meet in classified session with intelligence officials. It would also increase the pressure on the executive branch to finally fulfill its promises of greater transparency.
*Disclosure: I've gotten to know several Senate intelligence committee staffers through my work on another study on U.S. torture, by the Constitution Project's Task Force on Detainee Treatment.