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Guest Post: La Plus Ça Change: A Look Back at Intelligence Gathering Reform

“To understand the past in order to better propose guidance for the future”
-Church Commission (1976)

Today’s report that the NSA has been tapping into Google and Yahoo data centers, along with Steve Vladeck’s excellent post about Tuesday’s lackluster hearings before the House Permanent Select Committee on Intelligence on FISA reform, makes one worry that the more we learn about NSA data collection, the less elected officials are hearing.

To mix metaphors, a page of history can sometimes yield a pound of prevention.  The last time the country went through a spectacle quite like this one was when reporting on domestic spying by the intelligence community in the 1970s led to the creation of the Church Commission.  That Commission issued a voluminous report, setting out in great detail the malfeasance of the FBI, CIA and NSA, and containing point-by-point recommendations for reform.  Some of those recommendations became the law:  Notably, it was the Church Report, along with a prod by the Supreme Court, that led to the basic FISA structure we have today – although there were significant amendments since 9-11, which is partly why we are in the fix today.

Policymakers need to focus carefully on two of the key things the Church Commission whole-heartedly recognized, but about which some legislators appear to prefer a deaf ear.  First, spying on Americans is different than foreign persons, and second, adequate accountability of Executive Branch officials is essential.

As to the first, there is a fundamental difference between spying on foreigners and intelligence gathering on Americans.  Whatever one thinks of spying in the precise ways we have been on our allies, it would seem the prime directive here has been violated.  (Don’t get caught.)  But as to Americans, the imperatives are very different, which is why the Church Commission repeatedly drew the distinction between spying on those who are U.S. persons and those who are not.  This distinction was written into the original FISA legislation, but Patriot Act amendments watered it down, and it seems the NSA was not heeding it fully anyway.

But it’s the second that should be marching to center stage here, and still – from the sound of at least some Members of Congress – is not. 

In an uncanny resemblance to current events, the Church Commission decried a “vacuum cleaner” approach to foreign intelligence gathering.  The Committee, which included heavyweights from both sides of the partisan fence, “confirmed that properly controlled and lawful intelligence is vital to the national interest.”  But it was the lawful part that proved the rub.  Among the many transgressions documented by the Church Commission (such as widespread spying on dangerous organizations like those active in the civil rights and women’s liberation movements) were these: “[n]early a quarter of a million first class letters were opened and photographed in the United States by the CIA between 1953-1973, producing a CIA computerized index of nearly one and one-half-million names” and “[f]rom 1947 until May 1975, NSA received from international cable companies millions of cables which had been sent by American citizens in the reasonable expectation that they would be kept private.”  (Yes, it is true that the NSA is ostensibly gathering “metadata” rather than the contents themselves, but in terms of privacy interests at stake, this distinction has been well overblown.)  In short, the Church Commission concluded:

“Too many people have been spied upon by too many Government agencies and too much information has been collected.”

The Church Commission had many recommendations to address these problems, but the primary one was accountability.  As Frank Church’s letter of transmittal of his report to the full Senate said:

“The Committee’s findings and conclusions concerning abuses in intelligence activity and weaknesses in the system of accountability and control are amply documented.” 

What’s really stunning about the Church Report is the plain understanding that accountability begins with a full and open public debate about the activities in which the intelligence community was engaged.  Where today many have decried the harm done by intelligence disclosures – and who among us really does want the national security endangered? – the Church Committee saw disclosures as an opportunity for much needed reform.

“The Committee’s hope is that this report will provoke a national debate not on ‘Who did it?’, but on “How did it happen and what can be done to keep it from happening again?” 

The Church Commission recommended Congress fix what had been a “failure to apply the wisdom of the constitutional system of checks and balances to intelligence activities”:

“The founding fathers foresaw excess as the inevitable consequence of granting any part of government unchecked power.  This has been demonstrated in the intelligence field where, too often, constitutional principles were subordinated to a pragmatic course of permitting desired ends to dictate and justify improper means.”

The stream of revelations about NSA spying has made clear that when it comes to accountability, the FISA and related structures are simply not doing their jobs.  Provisions in the USA-Freedom Act for a Special Advocate to make FISA proceedings adversarial, and to assure some of those rulings are public, are a bare beginning.  But at some level what is really disappointing is the extent to which Members of Congress have been aware of what was happening and did nothing about it, or felt the extent of NSA spying was appropriate.  Or who have been – to use a reference rapidly being overdone – “shocked, shocked” to find USA-Patriot Act amendments have been read so broadly.  Once again, the Church Committee said it best:

“Congress has often declined to exercise meaningful oversight, and on occasion has passed laws or made statements which were taken by intelligence agencies as supporting overly-broad investigations.”

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About the Author

is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. Follow him on Twitter @barryfriedman1.