Intelligence Committees Must Stop Trying to Conduct Oversight In The Dark

Sen. Dianne Feinstein, D-Calif., listens to testimony by Director of the National Security Agency (NSA), Gen. Keith B. Alexan
Sen. Dianne Feinstein, D-Calif., listens to testimony by Director of the National Security Agency (NSA), Gen. Keith B. Alexander, Rand Beers, Acting Deputy Secretary of Homeland Security, Patrick Gallagher, director of the Commerce Department's National Institute of Standards and Technology, and Richard McFeely, Executive Assistant Director of Criminal, Cyber, Response and Services Branch, Federal Bureau of Investigation, about NSA surveillance before the Senate Appropriations Committee on Capitol Hill in Washington, Wednesday, June 12, 2013. (AP Photo/Charles Dharapak)

On April 3, 2014, the Senate Select Committee on Intelligence (SSCI) voted by an 11-3 margin to submit over 500 pages of its 6,200-page report on the CIA's torture program for declassification review. The White House has promised to support swift declassification of what the committee submits (although bizarrely, the White House expects the CIA to lead the declassification process despite an obvious conflict-of-interest).

I have spent much of the last year working in support of the SSCI report's release, and over ten years trying to figure out what the CIA was doing to detainees in secret prisons. Yesterday was the first day I have honestly believed, rather than hoped, that I would find out before another decade passes. But rather than focus on the specifics of the report, I wanted to write about what these recent events tell us about Congressional intelligence oversight more generally.

In the wake of Edward Snowden's disclosure of the extent of NSA surveillance, many civil libertarians have portrayed the congressional Intelligence committees as captives or dupes of the agencies they serve. That may be true of some members. It is not true of Senator Feinstein. It is even less true of some of her colleagues, and of the committee staffers who worked most on the SSCI report. Captives of the intelligence community do not spend years of their lives in a window-less SCIF reading graphic descriptions of torture. Dupes of the CIA do not write a 6,200-page report exhaustively cataloging the details of prisoners' brutalization and the agency's lies about it. They certainly don't get referred for criminal prosecution by the subjects of their investigation.

But as dedicated and conscientious as some of the intelligence committees' members and staff are, there is a pattern of institutional failure. For much too long, the intelligence committees have been trying to do oversight in almost complete secrecy. That doesn't work. It can't work. Until the oversight committees realize that, they will be operating blindfolded, with one hand tied behind their back.

The SSCI report is probably the most complete account we will ever have of the CIA's rendition, detention and interrogation program. But that program began over 12 years ago--and still, every word of the SSCI report is classified. Much of it will probably never be declassified, although yesterday's vote was a major step forward.

Most members of the Congressional intelligence committees were not read into the black site program until shortly before President Bush officially acknowledged it in 2006. Some members tried to investigate before then, but then-chairman Pat Roberts (R-KS) refused. The Senate inquiry officially began in 2009. The committee adopted its report in December 2012; this was followed by a 15-month lag before yesterday's official request for partial declassification review.

The Senate report would likely never have existed, and our country's disastrous experiment with torture would have ended years later, if it were not for previous investigations by journalists and non-governmental organizations. Some of those reports were based on open sources: accounts by prisoners after they were released; Freedom of Information Act requests; information on mysterious Gulfstream Jets from amateur "plane spotters" and air traffic control data. Many other stories were based on leaks of classified information: the Abu Ghraib photographs and the Taguba Report. The "death or organ failure" OLC torture memo by John Yoo that leaked in 2004. The ominous descriptions of a technique called "waterboarding," and secret prisons in former Communist bloc countries, and a homicide at a prison called the "Salt Pit," and of graphic interrogation videotapes being destroyed.

Those disclosures occurred before the public understood how pervasive NSA surveillance was, and before the recent wave of Espionage Act prosecutions for release of classified information. They occurred before the Department of Defense Office of the Inspector General suspended an employee's clearance for an "unauthorized disclosure" of unclassified information to the relevant Congressional committees, and before the CIA searched Senate staffers' computers and referred them for prosecution for accessing documents that may have been provided by a whistleblower. Today, the risk of disclosing classified abuses might seem too great.

Would the intelligence community alert the oversight committees to abuses today? Intelligence agencies do seem to have volunteered much more information about surveillance and targeted killing under Obama than they did about torture under Bush. But there is a great deal of information that the Executive Branch still refuses to disclose. To give only two examples, the Senate Select Committee on Intelligence still has never seen most of the Office of Legal Counsel memos authorizing targeted killing. Chairman Feinstein has acknowledged that the committee receives relatively little information about NSA surveillance under Executive Order 12,333.

The intelligence committees have also tied their own hands with regard to receiving information from or consulting with individuals without security clearances. Members and staff are forbidden from discussing not only classified information, but also "committee sensitive" matters. SSCI holds only a few open hearings a year, and hears official testimony from non-governmental witnesses even less often. The overwhelming majority of the committee's hearings are described exactly the same way on the SSCI website: "Closed Hearing: Intelligence Matters." There is no list of witnesses, or indication of the subject matter.

Staffers cannot discuss how NSA surveillance operates with technical experts in any detail, lest their questions or comments be taken as confirmation of classified information--even if that information is already public knowledge. A detailed interview of a Yemeni or Pakistani civilian who lost their family member to a drone strike would pose the same problem: staffers cannot ask questions or make statements that acknowledge U.S. responsibility for drone strikes. Everyone knows it, but it is still classified.

There is, obviously, information that genuinely needs to be shared with the intelligence committees in secret. But there is also widespread abuse of the classification power to hide crimes, avoid embarrassment, and prevent public debate. The intelligence committees could do much, much more to force open the windows and allow some light to enter.

The windows cracked open last month, when Senator Feinstein made her remarkable floor speech about the CIA's interference with the committee's oversight. It opened further yesterday--with assistance from some unlikely sources. After Senator Feinstein made her floor speech, Senator Richard Burr of North Carolina, who will soon become SSCI's highest ranking Republican, told reporters that she was wrong to publicly criticize the CIA. "I personally don't believe that anything that goes on in the intelligence committee should ever be discussed publicly," Burr said. But yesterday Burr and current SSCI Vice Chair Saxby Chambliss voted in favor of declassification. Two other Republican Senators, the conservative Tom Coburn of Oklahoma as well as the moderate Susan Collins of Maine, used the word "torture" to describe some of the CIA's conduct.

Perhaps most importantly, Senator Feinstein publicly committed for the first time to seeking declassification of the full study, though she did not specify when. I hope it is soon, and that this marks a new recognition of the value of public disclosure in SSCI's oversight efforts.