Balkinization  

Monday, March 31, 2008

Is There Any Way to Fix Legislative Oversight of Intelligence Operations?

Marty Lederman

In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:

1. She and seven other members of Congress were told the basic outlines of the program.

2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.

3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days."

4. "The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the 'exclusive means' for monitoring the communications of Americans connected to foreign intelligence."

5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was conducted pursuant to claims of 'inherent' executive power. To this day, I have not been shown the memoranda produced by the Office of Legal Counsel to support the basis for the program!"

6. Once she learned that the program was a violation of FISA, she opposed it.

This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program: The problem is systemic. (Really, the parallels are uncanny. Go back and read that post.)

Actually, there are at least two very basic, huge problems here:

First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws. As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable -- and we all presumably had far less knowledge of the details than Harman did. But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous. She took DOJ's word for it.

Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it? She couldn't speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally. If she had insisted on seeing the OLC memoranda -- which she certainly should have done -- what could she have done when the Administration refused to provide them (as it has continued to do to this day)? If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated.

As I've previously written, the pattern is by now very familiar. Whenever the Administration begins to do something of dubious legality, it:

1. sends to Congress messengers who the Intel committees trust -- solemn, serious, professionals, often uniformed military officers

2. to inform a very select, small number of legislators of the conduct -- legislators who have developed close and trusted relationships with the intel officials briefing them and who are, quite understandably, loathe to undermine such relationships, which do, after all, facilitate trust, access, and oversight itself

3. and to provide such briefings after the conduct has commenced

4. in a highly classified setting

5. putting the conduct in its best possible light -- in particular, making sure to insist that it has prevented terrorist attacks

6. while assuring the legislators that it has been vetted by the lawyers and is legal

7. without showing the legislators the legal analysis supporting the conduct

8. without disclosing the legal arguments that cut the other way

9. without informing the legislators of any policy-based or legal dissent within the executive branch

10. while warning the legislators that they may not legally breathe a word of it to anyone -- certainly not to staff, or their fellow legislators, nor to experts outside Congress who might be able to better assess the legality and efficacy of the conduct

11. and while insisting that the legislators cannot second-guess the need for classification and secrecy, even in cases -- such as with respect to OLC opinions concerning what techniques are lawful and which are not, and with respect to conduct that has been revealed to the enemy already -- where there is no legitimate justification for the classification.

The reaction from the Intel Committees is, alas, predictable: Muted, furtive and internal (i.e., entirely ineffective) protest, at best. More often than not, acquiescence and encouragement.

Harman is correct that the post-Watergate oversight system was ostensibly "designed to position Congress and the courts as an effective check against unfettered executive power." But the Administration circumvented the courts; and there is literally almost nothing the Gang of Eight can do when they are presented with troubling but classified information. As I've previously written, even if Harman had been convinced that the CIA or NSA was engaged in unlawful conduct, the system as it is presently constructed gives her very little opportunity to do anything about it -- not, anyway, without serious ramifications, and accusations of revealing classified information.

What to do? Here's what I've previously written; I'd love to hear others' ideas:

The question of how, exactly, to reform the intelligence oversight process is a very important and complex one -- but it's something that is rarely debated in public, and even more rarely contemplated at academic settings and in law schools. [UPDATE: I should have mentioned that such discussions and proposals are not entirely unheard of. See, most importantly, section 13.4 of the 9/11 Commission Report, and this related paper, published in the California Law Review, by Anne Joseph O'Connell of Boalt.]

Far be it for me to lay out a definitive framework for reform, but it might include some or most of the following components (this is just off the top of my head; please consider it a rough work-in-progress):

1. Strict requirements of notification before dubious conduct is undertaken (or in truly exigent circumstances, immediately thereafter). That's basically the law now, with respect to covert action and other aspects of intelligence activity, but the Executive branch regularly bends and flouts the requirements, and Congress does little or nothing to enforce them.

2. Notification and reporting to the entire Intelligence and Judiciary Committees -- the "Gang of Four" and "Gang of Eight" rules have proven to be a recipe for disaster. What are the "Gangs" supposed to do with the information, anyhow, if they can't even share it with their colleagues on the Committees? Can you imagine limiting the information within the executive branch to only the President and three or seven agency heads?

3. Significant changes in the classification standards and practices. At the very least, OLC legal opinions should be public, with appropriate redactions to protect sources and agency methods and technological capabilities that are genuinely unknown. Conduct that is revealed to persons outside the government -- such as the way we treat detainees -- should not be classified.

4. A serious, workable mechanism for congressional revelation and public oversight of suspected wrongdoing, including rules, which Congress might codify, to allow Congress to question particular classification decisions.

5. Meaningful recordkeeping and related requirements. There's no good reason that a law should not be enacted requiring that all interrogations be videotaped, for instance. Such a thorough record is good for intelligence; it's good for law enforcement and trials; it's good for oversight; and it deters unlawful conduct.

6. This might be the most important item: choosing Committee members, and counsel, who know as much about the relevant law governing the intelligence agencies as the relevant actors in the executive branch do. As it stands, there is a huge disparity in expertise and understanding. Congress cannot possibly provide sufficient oversight unless the people receiving the information are as conversant with the legal landscape as are the intelligence agencies and the lawyers in the Justice Department. And congressional counsel must be afforded access to the same information provided to the members of the Committees. Can you imagine if the professionals and the counsel within the executive branch were denied any knowledge of what goes on in the intelligence agencies? Well, it makes just as little sense on the legislative side, too.

7. The members of the Committees must be willing to use the leverage they have to obtain information that the executive branch refuses to share. In recent days, Senator Rockefeller, for instance, has been heard complaining that he has repeatedly asked the Administration for memos, documentation, etc., regarding the CIA interrogation program, only to be rebuffed at every turn. The committees are still seeking authorization to make public the OLC memos on interrogation and surveillance -- but no such permission is forthcoming. But yet Rockefeller, et al., then go ahead and push through the Military Commissions Act; they work to grant telecom immunity; they cooperate with the Administration on FISA "reform"; etc. At every turn, that is, they cooperate to give the Administration most of what it wants in terms of legislative amendments. They should, instead, insist that they will not even consider such proposals unless and until the Administration comes clean with all of the information and documentation that the Committee has been requesting for several years.

* * * *
Some or all of these suggestions may be terribly misguided -- I more or less jotted them down off the top of my head. And perhaps I've neglected to focus on several much more important items. One thing's for sure, though -- the current system is woefully inadequate, and cries out for serious reform proposals.


Comments:

I'll give a big "Hoo-yah!" to pretty much everything here. When I was in the Navy, I'd do some watches in the CIC (Combat Information Center) and on the Bridge. There was a lot of stuff I observed that didn't need to ever go outside the space, but in general, the usefulness of secrecy and classification is hugely overrated.
 

Sounds a lot like an MO to me Marty.

But while I do think some reforms are in order, our highest priority should be law enforcement, and once again, what the facts show is that OLC and OVP are at the center of a criminal conspiracy...

18 USC § 371 (Conspiracy to commit offense or to defraud United States)

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both. * * *


18 USC § 1505 (Obstruction of proceedings before departments, agencies, and committees)

* * * Whoever corruptly * * * influences, obstructs, or impedes or endeavors to influence, obstruct, or impede * * * the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress--

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.
 

Members of the gang of four or eight or the whole intel committees should have the authority to go before the FISA court and challenge a program as unlawful.
 

This post really isn't about Harman, I realize, but I think that in order to construct a remedy we first need a full understanding of the problem. With that in mind, let me add some detail to Harman's story.

Her description in 5 and 6 omits a significant fact: there was a substantial delay between the exposure of the program in the NYT and her opposition. I know this because she's my Representative. When the story broke, I immediately wrote her, stated my opposition to the Administration's illegal behavior, and asked what she intended to do. After a delay of nearly a month, she finally wrote back with a weasel-worded letter about the importance of the "program" and the need for security. Only much later, after considerable political pressure, including a primary challenge, did she take a firm position against the "program".

The lesson I take from this is that the relationship between the Administration (not just this one, ANY Administration) and the Intel Com members is utterly corrupt. Harman is a member of the opposite party. She is, or at least was, a lawyer (Harvard, no less). She occupies a safe district here in overwhelmingly blue CA. If she behaved so poorly, it's hard to imagine someone else doing better.

To me, that means that the system no longer functions as intended, i.e., it's corrupt. The separation of powers isn't working any more. In Brett's terms (see the discussions below), the political class has interests which it protects at the expense of the body of American citizens precisely because doing so leaves them as the "in crowd".

For this reason, I'm dubious about the actual benefit of Prof. Lederman's recommendations. That's not to say that we shouldn't support them; indeed, they're well-considered and even obvious. But they all rely on a Congress which actually functions as an oversight body. At least in the realm of national security -- and on every subject under the sun, when the same party controls both branches -- they will betray our trust (see Rockefeller, Jay).

I'd suggest two additional items (at least): there should be no executive privilege whatsoever as to Congress. If any member of Congress asks for information, the Administration should have to turn it over ASAP. In addition, and as a necessary consequence, we need to eliminate the privileged status of the Intel Com members. The relevant "programs" and information need to be accessible to every Member of Congress. That multiplies the chances that at least one will understand his or her obligation to the Constitution rather than the in crowd.
 

With all due respect, most of your suggestions sound more like expressions of frustration with the way things are, rather than serious proposals for reform. For example, you recommend “choosing Committee members, and counsel, who know as much about the relevant law governing the intelligence agencies as the relevant actors in the executive branch do.” Even assuming there were Members of Congress with such knowledge, what makes you think that the congressional leadership is going to select them on that basis, rather on fundraising ability, ethnic diversity or political loyalty? As for committee counsel, do you have any idea of how many counsel the intelligence committees have compared to the intelligence community? HPSCI has one chief counsel for each side, plus at most 3-4 other staffers with “counsel” in their titles (none of whom probably spend much time on what you would consider legal work). How could they possibly know as much about FISA, for example, as the dozens (if not hundreds) of executive branch lawyers who spend all of their time on FISA?

The 9/11 Commission made a serious proposal for reforming congressional oversight of intelligence, which Congress rejected with the same bipartisan enthusiasm that it brought to not enacting earmark and ethics reform. One can debate whether the Commission’s recommendations represent the optimal solution for what the Commission called the “dysfunctional” congressional oversight of intelligence, but at least they address the reality of the structure and incentives that exist within Congress.

In addition to the Commission recommendations, another step that should be considered is to enhance GAO’s very limited access to intelligence information generally, and to the CIA in particular. Apparently there is a bill in the Senate to do this, but it is facing a lot of opposition. Giving GAO more access would improve the ability of congressional committees to do serious oversight.
 

According to the Washington Post, Congress may be assigning GAO a greater role in intelligence oversight. See Extending the GAO's Reach.
 

"If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated."

The whole point of the oversight enterprise was *already* defeated when Rep. Harman chose to accept, at faith, the Executive's assurance that the program was legal, rather than verifying it for herself, as an actual overseer might have. She is, after all, as she likes to remind us, "a trained lawyer."

I feel Mark Field's pain as Rep. Harman was also my congressperson at the time in question. Like Mark Field, I too contacted her office as a constituent to voice my opposition to this program the very first business day after the program was revealed, and like Mark Field, I can confirm that there was a lengthy delay between the time the program was publicly revealed and the time that Rep. Harman chose to oppose it on legal grounds. The only reason that time ever came is not that she finally was able consult legal counsel. The reason that time came is that she was subjected to a primary challenge from the left which got nearly 40% of the vote in just 2+ months of campaigning.

Sounds like the key to effective legislative oversight is a vigorous primary challenge.

Patrick Meighan
Culver City, CA
 

Marty:

Would you buy Harmon's CYA claims if advanced by Mr. Bush? Indeed, Harmon has less of an excuse because, unlike Mr. Bush, she is a highly trained attorney with years of experience in the intelligence field. If Harmon was not aware of what FISA required, she had no business being on nevertheless heading the Intelligence Committee.

You know far less than Harmon did about the means and methods of the TSP and you have already decreed the program unlawful under FISA. What is preventing Harmon from doing so?

It is pretty damn plain that both Dems and the GOP in the Gang of Eight ALL SIGNED OFF on the TSP from the beginning because it was a good idea.

Indeed, heavy bipartisan majorities in Congress has agreed to virtually gut FISA because the TSP is a good idea. The only argument remaining is whether to allow the Dem trial lawyer contributors to be allowed to harrass the telecoms for previously doing what the new legislation allows.

The only reason Harmon is performing this song and dance is because her anti-Bush constituents do not take the time to think that the TSP is necessary and desirable. The woman knows better but runs in a no nothing district.
 

"If Harmon was not aware of what FISA required, she had no business being on nevertheless heading the Intelligence Committee."

The apocalypse is upon us! Bart finally writes a sentence that I agree with!

Though he may want to start spelling the congresswoman's name correctly (it's Harman).

Patrick Meighan
Culver City, CA
 

There's a question I've had for a while, and no one has answered:

It is pretty damn plain that both Dems and the GOP in the Gang of Eight ALL SIGNED OFF on the TSP from the beginning because it was a good idea.

Maybe I'm missing something. Where in the Constitution or the laws of this country is it stated that eight people get to "sign off" on executive actions, and that this "approval" (or is it "acquiescence") then has the force of law, making the actions "legal" notwithstanding any actual laws passed as per the Constitution by the two whole houses of Congress assembled?

Anyone? Is there any actual legal precedent for such a theory? Did Congress pass some laws or rules giving these people this authority? Could they pass any such laws or rules?

Cheers,
 

Indeed, heavy bipartisan majorities in Congress has agreed to virtually gut FISA ...

Must have been sleeping. When'd that happen?

Cheers,
 


It is pretty damn plain that both Dems and the GOP in the Gang of Eight ALL SIGNED OFF on the TSP from the beginning because it was a good idea.


Non-sequitur.
 

It is plain that Congress really does not want a serious oversight role over foreign intelligence gathering because they do not want to take the responsibility for the results of telling the executive that he or she cannot act to defend the nation.

FISA is just such a copout, unconstitutionally delegating congressional oversight to a secret court. The courts have no Article III authority to supervise foreign intelligence gathering and FISA has nothing at all to do with enforcing the 4th Amendment because the 4th Amendment does not require warrants for foreign intelligence gathering. Congress should eliminate all FISC oversight of foreign intelligence gathering and make that part of the mandate of the Intelligence Committees.

The arguments that Congress cannot figure out anything on their own without relying upon Executive lawyers is another cop out. All Congress has to do is create an OLC style small group of lawyers and order the FBI to conduct background checks for the highest classification. The Intelligence Committees will then have their own legal counsel and can no longer whine that they could not conduct their own legal research. Voila! No more problems with Executive Privilege.

None of this will happen, though. Congress simply does not have the institutional competence or the political will to conduct real oversight. Consequently, the President should ignore FISA and any other such unconstitutional nonsense, continue to give Congress general periodic status reports and get about his job as CiC.
 

FISA is just such a copout, unconstitutionally delegating congressional oversight to a secret court.

What a crock. The Communications Act and Title III both place authority for issuance of pen-register orders and wiretap warrants with the courts. No one suggests that this is unconstitutional; matter of fact, there's a good case to be made that the Constitution actually requires such (or something similar).

Maybe "Bart" is mistaking this for the preauthorisation of "blanket" warrants that the ill-fated PAA permitted. That might be unconstitutional, seeing as the Founders had a dim view of "general warrants"....

The arguments that Congress cannot figure out anything on their own without relying upon Executive lawyers is another cop out. All Congress has to do is create an OLC style small group of lawyers and order the FBI to conduct background checks for the highest classification. The Intelligence Committees will then have their own legal counsel and can no longer whine that they could not conduct their own legal research. Voila! No more problems with Executive Privilege.

Doesn't matter who has security clearances. Some Congressional staffers and even Congresscritters have such, but the maladministration still won't show them anything.

[other "Bart" nonsense ignored]

Cheers,
 

My answer to Bart's observation's is a paraphrase of what "Commandante Kos" has put out to all us lefty bloggers and sympathizers: Our objective in 2006 was to get MORE Democrats into both houses of Congress. Now our objective is to get BETTER Democrats in there!
All of Bart;s objections can be met by having better and more Constitutionally-aware legislators.
 

This comment has been removed by the author.
 

While the emerging facts underscore the obvious generalization that legislative oversight of intelligence is systemically crippled, that does not end the discussion.

I wholeheartedly have condemned the Bush administration for its violation of FISA and contempt for the rule of law in general. Primary culpability lies there, and with the party that endorses that record.

However, the Gang of Eight cannot wholly escape political liability. Rep. Harman's excuse -- Gee, Ididn't know it was illegal -- is risible given her own career experience with intelligence law. And her Democratic factional rival, Nancy Pelosi, was in the Gang of Eight briefings from the beginning -- however flawed those briefings were in structure and content.

Nowhere in the Constitution are eight legislators, meeting in secret with executive-branch functionaries, empowered to set aside the operation of statutes such as FISA.

So there is some degree of bipartisan complicity, which explains part of the tepid congressional response to this rancid scandal.

Because the Republican party has made support of such lawbreaking a party-line matter, I have no choice but to oppose its candidates in the coming election. But I do so with a bad taste in my throat, knowing that I will be voting for just the lesser evil.
 

I do think the oversight mechanism is broken, but there is an important factual point that needs to be made: absolutely nothing kept the Gang of Eight from discussing the information they were provided with their colleagues on the intelligence committees or with committee staff who had appropriate security clearances.

In fact, they were also free to discuss it with any member of the Executive Branch, or non-committee staff, provided that the person concerned had an appropriate clearance and "a need-to-know such information for an official
governmental purpose" (evaluating whether it was legal or not and how Congress should respond would certainly qualify).

Rule 9.7 of the SSCI (http://intelligence.senate.gov/rules.pdf): "No member of the Committee or of the Committee staff
shall disclose, in whole or in part or by way of summary, the contents
of any classified or committee sensitive papers, materials,
briefings, testimony, or other information in the possession of the
Committee to any other person, except as specified in this rule.
Committee members and staff do not need prior approval to disclose
classified or committee sensitive information to persons in the
Executive branch, the members and staff the House Permanent Select
Committee on Intelligence, and the members and staff of the
Senate, provided that the following conditions are met: (1) for classified
information, the recipients of the information must possess
appropriate security clearances (or have access to the information
by virtue of their office); (2) for all information, the recipients of the
information must have a need-to-know such information for an official
governmental purpose; and (3) for all information, the Committee
members and staff who provide the information must be engaged
in the routine performance of Committee legislative or oversight
duties. Otherwise, classified and committee sensitive information
may only be disclosed to persons outside the Committee (to include
any congressional committee, Member of Congress, congressional
staff, or specified non-governmental persons who support intelligence activities) with the prior approval of the Chairman and
Vice Chairman of the Committee, or the Staff Director and Minority
Staff Director acting on their behalf, consistent with the requirements
that classified information may only be disclosed to
persons with appropriate security clearances and a need-to-know
such information for an official governmental purpose. Public disclosure
of classified information in the possession of the Committee
may only be authorized in accordance with Section 8 of S. Res. 400
of the 94th Congress."

(The House Committee has an analogous rule.)

Nor would the President be authorized to withhold information from the gang of eight in retaliation for a decision to share it with other members of the Committee and properly cleared staff: 50 U.S.C. §413b(c)(2) imposes an affirmative obligation on the President to inform, at a minimum, the gang of eight; it imposes absolutely no obligation on the gang of eight to keep the information from their colleagues.

Claims to the contrary by Senators are profoundly disingenuous. It pains me to have to agree with Bart on something, but here he's right.
 

A couple more points.

1. The intelligence community needs to be split into two big chunks.

One should involve the big budget, big personnel, moderate opportunity for screw ups part of the community handling spy satellites, telephone intercepts, analysts, etc, where FISA compliance, getting both sides of the internal debtate out, and money spent are the main issues. This should have a lower level of secrecy precautions associated with it, since revealing those secrets is unlikely to get American agents killed.

A second should involve the much smaller (in dollars and people), but much higher risk and sensitive matter of human intelligence.
 

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