Who watches the watchmen?
In the U.S. House of Representatives, the answer to that question – in theory, at least – is the House Permanent Select Committee on Intelligence (HPSCI), which is charged with overseeing the nation’s spy agencies: the National Security Agency, the Central Intelligence Agency, and more.
HPSCI was created in 1977 in the wake of Nixon-era surveillance abuses to serve as a powerful counterbalance to the spy agencies’ inclination to spy on everyone, everywhere, all the time.
Because of the sensitive nature of HPSCI’s work, the committee usually meets in secret, deliberates in secret, and even passes legislation in secret. But all this secrecy creates a problem: How do we know that HPSCI is, in fact, watching the watchmen effectively?
Last year, all the world learned it wasn’t. As the explosive revelations from Edward Snowden and others demonstrated, the intelligence community had been collecting the communications of essentially every American.Now, for the first time since Snowden’s disclosures, HPSCI has brought its annual intelligence authorization bill to the House floor, where it quickly passed by a vote of 345-59 on Friday morning. This should have represented an opportunity for a dramatic overhaul of the intelligence community and for some critical examination of HPSCI’s own role. But it appears that HPSCI has lost sight of its founding principles – that it is, in effect, choosing allegiance to our nation’s spies, rather than to the law-abiding citizens who are being spied upon.
As one of us (Rep. Holt) learned as a former member of HPSCI, most members of the committee see their role as enabling the intelligence agencies to operate unencumbered, even to the extent of allowing the Intelligence Community to make the American public a target in order to protect the public.
Consider the following from the HPSCI’s committee report accompanying this year’s authorization bill: “Over the past year, massive unauthorized disclosures of classified information caused immense damage to our national security. The Intelligence Community might have been able to prevent those unauthorized disclosures if it continuously evaluated the backgrounds of employees and contractors and if IC elements had more effectively share potentially derogatory information about employees with each other.”
That’s the extent of the HPSCI’s outrage: It is furious not at the NSA’s abuses, but rather at the disclosure of abuses.Nowhere in the committee report is there any acknowledgement of the public’s concern over mass surveillance. Nowhere is there a hint that the NSA has acted improperly in subverting encryption standards used in software installed on personal computers nationwide. Nowhere does the committee note the NSA’s practice of breaking into shipping boxes that contain American electronic products, inserting covert surveillance technology, resealing the boxes, and sending them on to the purchasers, to the detriment of U.S. industry.
These omissions are all the more troubling because HPSCI represents one of our only lines of defense against improper intelligence activities. The obsession of HPSCI with secrecy not only makes it hard for the public to know whether oversight is real, but it also means that HPSCI operates without any outside help, making the committee largely dependent on the agencies it is charged to oversee. Other U.S. House committees benefit from public scrutiny and the input of outside groups: The Committee on Transportation, for instance, regularly hears from truckers and infrastructure engineers and mayors and environmentalists and many others. But HPSCI acts alone. If it fails in its oversight responsibilities, no one else can take its place.
HPSCI cannot even count on the help of whistleblowers to learn what activities in the agencies should be examined or reined in, because whistleblowers in the intelligence community have no statutory protection and are generally disciplined or prosecuted if they try to act even within proper channels.
How can we solve this staggering failure of oversight? One immediate option would be to repudiate categorically and unambiguously the NSA’s bulk collection of the public’s personal records – but Congress seems to have little appetite for that approach.
In the meantime, Congress should at least ensure that someone can reveal abuses that the Intelligence Committee overlooks or ignores. That means establishing strong protections for Intelligence Community whistleblowers.
To be clear, there is a real need for secrecy around national security activity, and a prudent whistleblower protection statute would recognize that fact. America shouldn’t simply grant all intelligence workers the right to publish classified information without fear of consequences. But Congress should at least ensure that intelligence workers can approach lawmakers with their concerns and be heard without fear of reprisal.
In the past, the House and Senate have provided safe forums for whistleblowers from the tobacco industry, sports, and other fields, as well as most government agencies, to meet with and testify before Congressional committees. Until we create similar opportunities for intelligence whistleblowers, our liberty and security will continue to be compromised in secret and with no meaningful chance for redress.
Who watches the watchmen? For now, the truthful answer is “nobody.” We can do better.
Rep. Rush Holt, former chairman of the House Select Intelligence Oversight Panel, represents New Jersey’s 12th Congressional District.
Steven Aftergood is director of the Government Secrecy Project at the Federation of American Scientists.