Why Congress Must Investigate NSA's Unconstitutional Spying

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.


Reproduced from Electric Frontier Foundation under Creative Commons license