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October 1, 2014
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Accountability of intelligence

Serious questions have arisen regarding the NSA’s post-9/11 grab bag of Internet and telephone programmes that suck metadata on US citizens into its vast computers.
By Loch K. Johnson
The Mark News (*)
Checks and balances system is in jeopardy

In 1975, I served as the assistant to Senator Frank Church (D-Idaho), chair of an investigative committee tapped to examine media allegations about illegal domestic spying by the Central Intelligence Agency (CIA).

The 16-month inquiry confirmed that much of the work done by the CIA, the Federal Bureau of Investigation (FBI), the National Security Agency (NSA), and other US agencies was laudable — and, in fact, indispensable for the security of the United States. Yet the committee uncovered an alarming number of abuses, including CIA spying at home and assassination plots against foreign leaders, FBI attempts to disrupt the civil-rights movement and anti-Vietnam War protests, and NSA interception of every cable sent abroad or received by US citizens.

Since then, the United States has been trying to find a workable equilibrium between the legitimate, protective operations of the intelligence agencies, on the one hand, and adequate measures of accountability, on the other. This equilibrium was lost in the wake of the 9/11 attacks, and it has yet to be restored.

In jeopardy is the entire system of intelligence checks and balances that the Church Committee put in place, including the credibility of the Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). These panels were established as a result of the committee’s findings, for the purpose of providing steady supervision over US intelligence activities. Now, the United State’s behemoth “intelligence community” — 17 secret agencies — threatens to slide back into the era when the nation’s clandestine activities lay dangerously outside the constitutional safeguards for government that were established by the country’s founders.

Serious questions have arisen regarding the NSA’s post-9/11 grab bag of Internet and telephone programmes that suck metadata on US citizens into its vast computers, absent any standard of reasonable suspicion that a targeted individual is involved in terrorism or other criminal activity. This vacuum-cleaner approach runs counter to a more acceptable strategy in a democracy of gathering intelligence against specific targets reasonably suspected to be terrorists or associates of terrorists. These massive NSA metadata programmes evoke George Orwell's dystopian vision of society in his novel 1984.

On top of this comes the revelation that the CIA may have tortured suspected terrorists, and that it may have been spying on the SSCI, the Senate panel responsible for maintaining a check against improper intelligence operations.

The 1980 Intelligence Oversight Act requires the executive branch to report to the SSCI and HPSCI on all significant intelligence activities in advance of their implementation. The law allows a one-day reporting delay in times of crisis, but even then mandates that advance reports be given to eight lawmakers (the so-called “Gang of Eight”). Yet, both the Bush and Obama administrations have attempted to turn this emergency provision into the normal practice, briefing just eight lawmakers — if, indeed, that many — on key intelligence operations.

Few, if any, members of Congress have been aware of how widely the NSA has cast its intelligence-collection dragnet. Clearly, more effective reporting procedures are required to ensure that key lawmakers and staff on the SSCI and HPSCI — not just the Gang of Eight — are well informed about intelligence operations.

The US public also remains in the dark about whether the CIA used torture during the George W. Bush administration, and whether, if it did, that torture was justified and in accordance with Justice Department guidelines. The public needs to know, too, whether the CIA has improperly interfered with the SSCI’s probe into the torture allegations or spied on members of Congress and their professional staff.

These lingering questions all suggest the need to establish another Church Committee that can investigate these charges of malfeasance. Lawmakers on the SSCI and HPSCI can continue their important day-to-day oversight activities, but a special committee has become necessary to provide a fresh set of eyes to look at these serious allegations.

As with the Church Committee in 1975, the Senate majority leader could choose 11 senators from across both parties to conduct a focused, one-year investigation into the NSA’s metadata program, as well as into the CIA’s interrogation methods and its relationship with congressional overseers.

The air needs to be cleared on these controversial subjects. As former US president Harry S. Truman once put it, “the way a free government works, there's got to be a housecleaning every now and then.”

Loch K. Johnson is Regents Professor of Public and International Affairs, senior editor of the international journal Intelligence and National Security.

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