WASHINGTON -- Outspoken members of the Senate Intelligence Committee have said frequently that they wanted to warn the public about the National Security Agency’s sweeping collection of telephone records but the program’s highly classified nature prevented them from making public reference to the programs.
That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it’s never been used.
The committee’s failure to make use of the provision even once, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question the intelligence agencies’ claims that something must remain secret.
“Clearly, there are some secrets that the government should protect. So it’s serious business,” said former Democratic U.S. Rep. Lee Hamilton, a former chairman of the House Intelligence Committee who co-chaired the government’s investigation of 9/11. “But . . . Congress has been, I think, far too deferential to the president in letting him control the classification system.”
The irony of that deference has been on display for the past two months as Congress debates whether the NSA’s collection of domestic telephone metadata goes beyond what Congress intended when it passed the USA Patriot Act in the wake of the Sept. 11, 2001, terrorist attacks: The debate became possible only because a former NSA contractor, Edward Snowden, who now faces criminal charges, leaked a secret order from the Foreign Intelligence Surveillance Court authorizing the program.
Intelligence Committee member and NSA critic Sen. Ron Wyden, D-Ore., acknowledged the importance of Snowden’s leak in a speech two weeks ago in which he credited the former contractor with opening a conversation that the senator himself had failed to start for two years.
But Wyden’s admission also provided evidence of the inadequacies of the Intelligence Committee’s efforts to oversee such controversial programs, critics say.
Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy, calls the committee’s failure to take the initiative to declassify records "frustrating and disappointing."“It is an authority that Congress could exercise and take responsibility for,” he said. But he said it wasn’t part of what he called "their conscious tool kit."
The Senate established the Intelligence Committee to replace the so-called Church Committee, chaired by the late Sen. Frank Church, D-Idaho. That committee had uncovered a range of questionable intelligence practices, including CIA involvement in White House efforts to cover up the Watergate scandal, the opening of Americans’ mail, the unauthorized storage of toxic agents and a series of covert efforts to assassinate Cuban leader Fidel Castro.
Senators foresaw the likelihood of a conflict between the intelligence agencies and the legislative branch. The legislation that established the committee called for it to “provide vigilant legislative oversight over the intelligence activities of the United States.”
As a part of this oversight, Section 8 of the resolution lays out a process by which a member of the Intelligence Committee may seek the declassification of information that he or she thinks is of public interest, even if the executive branch labels the material top secret.