Why Congress Must Investigate NSA's Unconstitutional Spying
June 20, 2013
Gizmodo - In
the past couple of weeks, the NSA has, unsurprisingly, responded with a
series of secret briefings to Congress that have left the public in the
dark and vulnerable to misstatements and
word games.
Congress has many options at its disposal, but for true accountability
any response must start with a special investigative committee. A
coalition
of over 100 civil liberties groups agrees. Such a committee is the
right way the American people can make informed decisions about the
level of transparency and the reform needed.
A Special Investigatory Committee is the Right Way to Shine the Light and Create True Accountability
A special
investigatory committee should be bipartisan, consist of selected
Intelligence and Judiciary committee members on both sides of the issue,
and have full subpoena powers. After Watergate, Congress created the
Church Committee
to investigate domestic spying and other illegal actions committed by
the intelligence community. What it found was staggering: in one example
of abuse, the NSA was reading and copying all telegrams entering and
exiting the country. In another, NSA had intercepted, opened and
photographed more than 215,000 pieces of mail—mass surveillance circa
1970. The Church Committee brought these revelations to light, informed
the American people, and took steps to limit the broad nature of the
surveillance.
The
contemporary Congress must create a similar, independent, and empowered
committee. The President and some members of Congress
prefer
an investigation by the President’s appointed Privacy and Civil
Liberties Oversight Board (PCLOB), but the Board is not even empowered
to issue subpoenas. And the two key committees that rubber-stamped the
expansion of the NSA spying from foreigners-only to ordinary Americans
have proven themselves unable to rein in the spying.
President
Obama says he welcomes a public debate on the programs. If he’s serious,
he and Congress need to take the path of a modern day Church Committee.
The PCLOB
Last week, Senators
called for an investigation by the PCLOB. The PCLOB was one of the recommendations of the
9/11 Commission
and was set up to try to ensure that privacy and civil liberties played
a role in the enormous expansion of surveillance laws like the
PATRIOT Actand
Foreign Intelligence Surveillance Amendments Act.
Yet it has not. Instead, the PCLOB has lingered without a
chairman—making it inoperable—for almost five years. It was only until
this spring that the Senate finally
confirmed
David Medine as the chair, however the PCLOB has done little, if
anything, since then. That’s because it has no real power. If the PCLOB
asked the NSA for certain documents related to the spying, for instance,
the NSA would not have to hand the documents over or present testimony
under oath. In a hearing this week, General Alexander, the Director of
the National Security Agency, committed to cooperating with any
investigation by the PCLOB. But given the NSA’s
history
of gross misdirection, word games and limited answers to direct
questions—including General Alexander’s own falsehoods in Congressional
testimony—this investigation should not rely on the good will of the
NSA. Yet, that’s exactly what the PCLOB would have to rely upon.
Hearings in Front of the Judiciary or Intelligence Committees
Nor do the
Judiciary or Intelligence committees hold great promise. These
committees should serve as the American people’s robust window into—and
constitutional check on—intelligence operations. For instance, in 2005,
when the
New York Times first reported on the warrantless
wiretapping, many hearings took place in front of both the Senate and
House Judiciary and Intelligence committees. The Committees certainly
did not reveal the full extent of the spying, even though they had the
opportunity. Instead, politicians were stonewalled, swallowed grossly
misleading answers, and revealed few details.
Currently, the Senate Intelligence committee has met publicly
only 2 times this year; from 2011 to 2012 it only met 8
times. The House of Representatives is no different. The House Intelligence committee's Subcommittee on Oversight
has not met once this year. Yes, not once. And the full House Intelligence committee has only met
four times. History tells us a similar story about the Judiciary Committees.
The public demands for a robust debate require more transparency and tenacity than these committees seem able to provide.
The Secret Veil Must Be Lifted
In short,
the lessons of 2005 is that the standing Congressional committees are
unable to get at the bottom of the NSA spying and the PCLOB does not
have sufficient power to do so either. A special investigative committee
with full subpoena powers, the ability to force testimony under oath,
and the ability to issue sanctions for failure to cooperate is the best
hope that the American people have to ensure the NSA's domestic spying
isn't swept under the NSA’s giant secrecy cloak once again.
Tell Congress now to act.