“Restoring Accountability over US Intelligence”
GEORGETOWN LAW SCHOOL REMARKS
Loch K. Johnson, September 24, 2013
Introduction: A Climate of Fear
In the crucible of fear, the Constitution takes on malleable proportions---or so some in
high office seem to believe. In response to dangers, real or imagined, power can become
concentrated in the hands of a few leaders. Yet this concentration of power is precisely what the
founders of this nation cautioned against. James Madison and his colleagues who wrote the
Constitution were, above all, anti-power in their perspectives.
The founders had seen in the actions of George III the folly of kingly rule. As a result,
they sought to disperse power among three “Departments” of government: the executive, the
legislative, and the judicial. From their own experiences, as well as from the writings of Locke,
Rousseau, and Montesquieu, they understood the corrosive effects of power. Lord Acton would
famously state this position in 1887, a hundred years after the publication of the Federalist
Papers: “Power tends to corrupt and absolute power corrupts absolutely.” In the Federalist
Papers, Madison advocated the adoption of “auxiliary precautions”---what today we refer to as
checks-and-balances---to protect the American people against the abuse of power. Jefferson
advised binding down leaders “from mischief by the chains of the Constitution.” In the modern
era, Justice Brandeis similarly reminded us that the goal of the founders was not to promote
efficiency, but rather “to save the people from autocracy” (Myers v. United States, 1926).
Instead, in the face of danger, leaders have often abandoned this bedrock principle of
American government. The events at Pearl Harbor in 1941 led to the shameful incarceration of
Japanese American citizens in prison camps. During the Cold War, fear of communism yielded
the excesses of the McCarthy era, as well as domestic spying by American’s intelligence
agencies and compulsive intervention in foreign conflicts around the globe. Then, in 2001, the
administration of George W. Bush turned to a variety of questionable (and in some cases illegal)
programs, all in the name of counterterrorism. The government engaged in warrantless wiretaps
(a violation of the Foreign Intelligence Surveillance Act of 1978); extraordinary rendition;
torture; holding individuals in secret prisons abroad; the jailing of suspected terrorists
(“detainees”) in Guantánamo without due process; and, the most recent revelation, a vast
collection of telephone records and social media “metadata” within the United States. Although
leaked in a reckless manner by a government contractor (Edward J. Snowden) in 2013, it was
important for the American public to learn about this intelligence collection program conducted
by the National Security Agency (NSA).
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Further, the administration of George W. Bush advanced ambiguous legislative proposals
to strengthen executive authority over foreign and domestic security policy, including the Patriot
Act and the Authorization for Use of Military Force---AUMF, a green light for war not just
against Afghanistan, which had harbored the Qaeda terrorists that struck the United States on
9/11, but against Iraq and global terrorism as well. In this climate of fear, lawmakers quickly
approved the measures without serious study, hearings, or debate. The Constitution and statutes
became less venerable rules for governance than mere suggestions that could be accepted or
rejected.
The next administration, led by President Barrack Obama, brought a stop to some of the
most extreme counterterrorism measures---renditions, secret prisons, and torture---but
countenanced the ongoing NSA metadata collection inside the United States and continued to
hold detainees in Guantánamo. Moreover, the administration failed to lift the fog that surrounds
the secretive Foreign Intelligence Surveillance Court (FISC).
Balancing Liberty and Security
Security measures and civil liberties involve a balancing act between government
transparency, on the one hand, and the clandestine collection of intelligence against those who
would harm the United States, on the one hand. Everyone agrees that we must thwart further
terrorist attacks against the United States; but we can also agree that we don’t want to turn the
United States into a North Korea---the ultimate Surveillance State, where everyone is constantly
watched by the government. The challenge is to keep our shield raised without abandoning our
democratic freedoms.
The tensions between these two values have grown since the 9/11 attacks. The initial
responses to that attack---the Patriot Act and AUMF---are understandable. The American
homeland had been struck; we needed to strengthen our defenses and hunt down the perpetrators.
The routing of the Taliban and Al Qaeda in Afghanistan was a success---at least until the Bush
administration became sidetracked and entered into a war against Iraq in 2003, despite the
ambiguity about its alleged WMD program and without the support of major allies like France
and Germany.
Following the 9/11 attacks, our defenses at home improved as well---at least until the
Bush and Obama administrations carried their use of domestic surveillance too far. The vacuum
cleaner approach taken by the NSA (urged by the Bush White House and accepted by President
Obama) toward gathering massive amounts of communications data on all American citizens--whether suspected of terrorist associations or not---ran counter to the more acceptable strategy of
gathering data only against specific targets reasonably suspected to be terrorists or associates of
terrorists. The balance tipped dramatically away from transparency and toward a degree of
domestic spying that evoked Orwell’s dystopian vision of society in the novel 1984. Now we
face the question of how to restore the proper balance between liberty and security.
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Two ingredients are especially important for this restoration. First, the executive branch
must regularly provide information to Congress about its intelligence activities. Members of
Congress must rely heavily on executive branch briefings and reports to learn about US
espionage operations. Second, lawmakers must take an active interest in attending these
briefings and reading the intelligence reports. Without the cat watching, the mice will play.
Executive Branch Reporting
America relies not so much on a strict Madisonian interpretation of divided power---a
prescription for deadlock---but rather on a sharing of power among the institutions of
government. For instance, the Constitution calls upon the executive and legislative branches to
jointly handle the war and the treaty powers. Yet in the intelligence domain (a topic never
addressed in the founding document) the executive branch has exhibited a long history of
ignoring the Congress---even though the sine quo non for effective legislative review of secret
operations depends on lawmakers knowing about these activities.
From 1947 when the Central Intelligence Agency (CIA) was created until 1974, members
of Congress were largely kept in the dark about intelligence activities. Then, in 1974, articles in
the New York Times disclosed Operation CHAOS, a CIA domestic spying program aimed at
American citizens whose only “crime” had been to protest against the war in Vietnam. This
shocking revelation led Congress to create special investigative committees to probe into the
charges, the most well-known of which was the Church Committee in the Senate, led by Frank
Church (D, Idaho). The Church Committee discovered that not only was the Times reporting on
CHAOS correct, but that this operation was merely the tip of an iceberg of illegal surveillance--including a Federal Bureau of Investigation (FBI) program known as COINTELPRO that
involved spying and harassment operations against thousands of Americans who participated in
the civil rights and antiwar movement of the 1960s and 1970s.
Dormant for so many years, an aroused Congress ushered in a new era of serious
supervision of America’s secret agencies. Lawmakers established a Senate Select Committee on
Intelligence (SSCI) and a House Permanent Select Committee on Intelligence (HPSCI), assigned
to review intelligence activities on a continuous basis: budgets, operations at home and abroad,
and the allegiance of the secret services to the law and congressional expectations of propriety.
Congress also established reporting requirements, which mandated by law a steady stream of
information from the executive branch to Congress on all significant intelligence activities.
From the beginning of 1975 through the present, the executive branch has been expected to keep
lawmakers informed so they can exercise their constitutional duty to assess the appropriateness
of secret operations.
The Intelligence Oversight Act of 1980 went so far as to require prior (ante facto)
reporting by the executive branch on proposed intelligence activities, giving Congress a chance
to examine them before they unfold in the field rather than learning about them after the fact (ex
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post facto). In times of emergency, the law allowed the executive branch to report in advance to
just eight members of Congress (“the Gang of Eight,” as they became known---four GOP and
four Democratic leaders in each chamber), with follow-up reporting to the full SSCI and HPSCI
membership in a timely manner.
Despite this and related laws, the executive branch has chosen periodically to dismiss the
spirit of power-sharing, refusing to keep lawmakers informed. The ploys used have ranged from
complete silence to verbal legerdemain. An example of silence is the NSA’s intelligence
collection programs since the 9/11 attacks. The Bush administration chose to bypass the Foreign
Intelligence Surveillance Act of 1978 by simply ordering the Director of the NSA at the time,
Gen. Michael V. Hayden, to go ahead with warrantless wiretaps based solely on presidential
authority. While the administration told a few specially anointed lawmakers about this activity,
even these chosen few subsequently claimed---when the illegal operations surfaced in the New
York Times in 2005---that they had been not denied details and prohibited from discussing the
program with their professional staff or other colleagues. This selective and circumscribed
reporting is a far cry from the intent of the Intelligence Oversight Act of 1980. The same thing
happened again with the NSA’s metadata collection program, unveiled by Snowden in 2013.
The Obama administration informed a few lawmakers, but they were prevented from taking
notes, discussing the legal ramifications with professional staff, or debating the merits of the
initiative even within the secret confines of SSCI and HPSCI. Both administrations turned their
backs on the concept of meaningful ante facto reporting. Further, even when the NSA did at
least inform the FIS Court about some of its domestic collection activities, in at least three
significant instances (according to a 2013 ruling by John D. Bates, a judge on the Court) the
reports misrepresented the operations and contained “repeated inaccurate statements.”
The George W. Bush administration was hardly the first to stiff the Congress. Famed
CIA Director Allen Dulles (1956-61) once said that he would provide intelligence to only one
official in the United States: the president---if he asked. Since then, lawmakers with intelligence
oversight responsibilities have been the victim of one evasion or outright lie after another. In
1975, for example, the Ford administration attempted to keep information about CIA
assassination plots away from the Church Committee; but President Gerald R. Ford had to retreat
when it became clear that Republicans and Democrats alike on the panel insisted on examining
this macabre side of American foreign policy, and were willing to go to court if necessary to
obtain the relevant documents. In the lead-up to the Iran-contra affair in the early 1980s, CIA
officers and staff members of the National Security Council (NSC)---including national security
advisers Robert McFarlane and Adm. John M. Poindexter---tried to elude legislative
investigators by flatly denying knowledge of the unauthorized covert actions in Iran and
Nicaragua. When the scandal broke, a high-ranking CIA officer argued that his previous sworn
testimony on Capitol Hill that attempted to sidestep questions about the Iran-contra operations
had been “technically correct, [if] specifically evasive”---gobbledygook of the highest order.
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Again, in 1995, the CIA concealed the presence of a Guatemalan murderer on its payroll,
even though the Intelligence Oversight Act of 1980 required reports to Congress on any
suspected improprieties. When lawmakers found out about this, the acting CIA Director at the
time, Adm. William O. Studeman, replied: “. . . . It slipped under the carpet.” A member of
SSCI responded: “That’s a big carpet over there at Langley [Virginia, the location of CIA
Headquarters], isn’t it? To hold all the things that have slipped under it. It’d have to be a large
carpet.”
When Congress attempted to learn why the intelligence agencies had been unable to warn
the nation about the 9/11 attacks, lawmakers once more ran into a brick wall of obduracy and
obfuscation. The name of the game for the CIA and the White House was slow-rolling and
stonewalling. Intelligence Director George Tenet refused to provide key documents to the
investigative committee and, at the last minute, prevented intelligence witnesses from appearing.
In place of comity came combat. Similarly, both Presidents George W. Bush and Barack Obama
have tried to turn the “Gang of Eight” rule---meant to be applied only in emergencies---into the
normal reporting requirement, informing only eight lawmakers (if that many) instead of the
required full membership of SSCI and HPSCI. The Obama administration continued the Bush
administration practice of sometimes briefing only a couple of lawmakers, with instructions to
them not to mention what they have been told to anyone else, including staff who could carry out
a serious analysis of the proposal. No doubt the executive branch would most prefer the Gang of
Nonel. Congress shares the blame for this collapse of constitutional government.
Legislative Deference
During what might be called the Era of Benign Neglect from 1947-74, lawmakers seldom
raised questions about intelligence operations---or even bothered to take a serious look. Walter
Norblad (R, Oregon), a member of the small House Armed Services subcommittee on oversight
in the 1960s, remembers that “we met annually---once a year---for a period of two hours in
which we accomplished virtually nothing.” In the next decade, an unusually forthright Director
of Central Intelligence, James R. Schlesinger, asked Senator John Stennis (D, Mississippi) if he
would like to have more extensive CIA briefings. The answer was: “No, no, my boy, don’t tell
me. Just go ahead and do it---but I don’t want to know!” When rumors floated around the
capital city in the mid-1980s about the Iran-contra affair, the chairs of SSCI and HPSCI accepted
on face value the denials of McFarlane, Poindexter, and their action officer Oliver L. North.
Even with the unsettling findings of the Church Committee about intelligence abuse still fresh in
mind, these lawmakers failed to place the NSC officials under oath or subpoena their records.
So far, the recent NSA disclosures have not reached the threshold of alarm sounded by
the Times reporting on Operation CHAOS in 1974; nevertheless, that threshold is in sight and
further disclosures could lead to a full-blown inquiry comparable to the Church Committee. In
the meantime, sufficient public pressure has developed in the context of the Snowden leaks to
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mobilize SSCI and HPSCI into conducting an overdue appraisal of the wide net cast by the NSA
since 2001.
Conclusion
America’s promise of democracy, spelled out in the Constitution, the Federalist Papers,
and subsequent laws, has been an inspiring story unfolding since 1787. The passage has been
anything but smooth, interrupted by civil war and violent struggles over civil rights. Despite
setbacks in this ongoing quest for full equality, past achievements give hope for optimism about
the future. Yet Americans will have to confront more effectively the question of how an open
society can accommodate secret agencies and keep them within the boundaries of law and
propriety.
Good law is not enough. After all, strong oversight statutes existed before the Irancontra affair and, more recently, before the NSA decided to collect intelligence on every
America’s communication habits. Just as important as good law is the necessity of constant
dialogue between the executive and legislative branches---precisely the objective of the
Intelligence Oversight Act of 1980. The missing link is the will of executive branch officials to
provide to SSCI and HPSCI full information about significant intelligence activities, and the will
of lawmakers to study and weigh the merits of these initiatives.
Strong incentives exist for this to happen. When intelligence is provided to members of
Congress, the executive branch has a partner with who to share the blame if things go wrong.
Moreover, experienced lawmakers are in a position to provide valuable insights into security
matters. A former Director of Central Intelligence, Robert M. Gates, has commented on the
advantages of including Congress in intelligence deliberations: “Some awfully crazy schemes
might well have been approved had everyone present [in the White House] not known and
expected hard questions, debate, and criticism from the Hill. And when, on a few occasions,
Congress was kept in the dark, and such schemes did proceed, it was nearly always to the lasting
regret of the president involved.” Further, what member of Congress wishes to be AWOL in his
or her responsibility for bolstering intelligence---American’s first line of defense? This
relationship is a win-win for both branches of government.
Along with this vital need for cooperation between Congress and the executive branch,
democracy within the dark side of government will depend on a diligent media probing into
intelligence operations. Indeed, the vast majority of intelligence scandals and failures have been
brought to light by investigative journalists. The judicial branch will also have to improve its FIS
Court procedures for the review of intelligence warrant requests, with less of an inclination to
defer automatically to executive branch attorneys. Finally, citizens must take a more active role
in demanding the protection of their fundamental rights. Americans must either fight for their
right of privacy or lose it. The security side of the equation is well represented by the
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intelligence bureaucracy and its allies in the private sector; the counterbalance of a wellorganized and well-funded coalition of privacy groups has yet to form in the United States.
These are all significant challenges. Yet they are no more daunting than the obstacles
Americans have already overcome on the road toward a more perfect democracy. The time has
come to bring the proper degree of accountability into the shadowy world of intelligence.
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