There are two institutions we are asked to trust to supervise the National Security Agency and the rest of the intelligence community to make sure they are obeying the Constitution and the law. We are told that we have to rely on Congress really, the House and Senate Intelligence committees and the Foreign Intelligence Surveillance Court (FISC), because the operations of the intelligence community, its sources and methods of gathering information, are and must remain secret.
On the other side of the equation, we are told by fugitive NSA leaker Edward Snowden — and much of the media that the information Snowden has already leaked proves that the NSA is violating the Constitution and running amok by invading the privacy of pretty much everyone’s telephone conversations, emails, and every other means of communicating that involves electrons.
It’s increasingly apparent and increasingly alarming that both of these positions are plainly wrong.
It’s pretty obvious that the House and Senate intel committees aren’t up to the job they’re supposed to be doing. It’s no wonder the public is less and less confident that they’re up to the job.
The best example of this failure goes back to March 12 before the Snowden leaks became public. Then, in a hearing of the Senate intel committee, Sen. Ron Wyden (D-OR) asked Director of National Intelligence James Clapper, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”
To which Clapper answered, “No, sir.” His questioner followed up. “It does not?” Clapper said, “Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.”
Since then, Clapper has admitted that he lied. His characterization of his testimony that he gave the “least untruthful” answer possible stands as a monument to George Orwell.
It may be that the Senate Select Committee on Intelligence has had a closed session with Clapper since then. It may be that his “least untruthful” answer was replaced by the truth. And it’s equally possible that it hasn’t, and that Congress’s constitutional duty of oversight has been thwarted again by the Obama administration.
In that event, Team Obama would have as it has previously in the “Fast and Furious” scandal and countless other demands for information from Congress thwarted congressional oversight and gotten away with it.
We don’t know. And we’re not likely to ever learn the truth of the matter.
Our government has secrets, and has the duty to keep them secret. But it also has the duty to tell the public enough so that it can have a sense of confidence in government, not the pervasive distrust that now exists.
The FISC has the same sort of problem. We know, thanks to Snowden’s leaks, that the FISC rendered a decision ordering the Verizon company to divulge “metadata” on about 120 million customers. Thanks to other leaks we know that the Verizon order was justified by a previous FISC decision that so broadened the term “relevant” in the context of intelligence gathering on terrorism — that all 120 million Verizon-connected telephones were made subject to it.
Let’s set aside, for the moment, the fact that the courts have held that telephone subscribers don’t own the “metadata” that the FISC ordered to be released secretly to the FBI and NSA. We know, thanks to those rulings, that the Fourth Amendment’s protection against unreasonable search and seizure of information regarding those 120 million Verizon customers isn’t even relevant. But there’s another concern.
We don’t know, from the FISC order leaked by Snowden, what the rationale was behind it. And we don’t know what, if anything, the FISC did to limit the data collection by NSA. It’s pretty clear that whatever they did, they didn’t go to the lengths that would engender confidence in their ruling.
We understand that the FISC has to operate in secret. But we know, from various sources, that the court almost never denies the government’s applications for orders or even limits them. Perhaps this is the result of the fact that the court operates unique among American courts in non-adversarial proceedings. Only the government’s side of the case is heard. There is no “defense” side in any case.
Which is the proper way in fact the only way the FISC can function. FISC cases do not decide criminal guilt or innocence. No liability is decided as in civil cases. They are most like police applications for search warrants or wiretaps. Those proceedings, too, don’t provide for a defense nor, under the Constitution, do they need to.
And, in the cases in which foreign agents of all sorts and terrorists of all stripes are involved, there cannot and should not be a defense presented. To have one, it would be necessary to have the “defendant” notified of the proceeding. Which, in the case of terrorists and other kinds of foreign agents i.e., spies would be self-defeating.
But what can we do about the reasonable and understandable suspicions people have about the FISC’s rulings? There’s no solace in Snowden’s leaks. For all the tidal wave of media hype, the leaks haven’t demonstrated a single violation of American law far less the Constitution. They may, however, be a path to proving the abuse of power.
That’s the heart of the matter: the unproven suspicion of abuse of power. To understand that suspicion, we need only look at the Obama administration’s rap sheet, which is awfully long.
On the “Fast and Furious” scandal, the administration perpetrated a massive cover-up ending with Attorney General Holder being held in contempt of Congress and protected from criminal sanctions for contempt by Obama’s claim of executive privilege. On the IRS scandal, Lois Lerner’s claim of the Fifth Amendment’s protection against self-incrimination comprises the agency’s entire defense. On the Benghazi attack, the administration executed another cover-up, making Watergate pale in comparison. And then there’s the AP subpoenas, the James Rosen search warrant and Clapper’s “least untruthful” congressional testimony.
With that record, it’s not possible to believe what the administration says on any matter, including the NSA. There is a solution to this, and it’s not easy.
First and foremost, the House and Senate intel committees have to perform an intensive oversight effort on the actions of the FISC and the NSA as well as the FBI. They need to have closed hearings in which they wire brush the intelligence agencies to find out just what they’re doing. That may take months of hearings, but it needs to be done.
When it’s done, the committees need to make public a version of what they did to perform their duty of oversight and what they found. If there’s an abuse of power, it needs to be identified and fixed legislatively. We don’t want and can’t afford the kind of revolution against intelligence gathering as Sen. Frank Church (D-ID) led in the late 1970s. But Dianne Feinstein and Mike Rogers, chairmen of the intel committees, have to do their jobs and prove to the American people that they can be trusted to do them.
Finally, the FISC needs to look at itself and ask for guidance from the only appropriate source: Chief Justice John Roberts, who himself appoints the FISC judges. The Chief Justice needs to examine the FISC with the same rigor as the intelligence committees examine the NSA and the other intel agencies. And, at the end of his review, Roberts needs to publish, like Congress, a version of his findings both good and bad.
The distrust of the Obama administration we all feel can’t be fully dealt with while this president remains in power, if ever. That distrust is a danger to national security for as long as the overseers of the intelligence community Congress and the Chief Justice don’t do their jobs.
If we can’t be told good reasons to trust our protectors, more individuals like Snowden will take it upon themselves to leak critical information. At some point, perhaps soon, those leaks will make it impossible for the nation to defend itself.
Photo: UPI (on left, House Intelligence Committee Chairman Mike Rogers, R-Mich.)