When Sen Ron Wyden stepped to the Senate floor last December, he had something on his mind. He was disturbed by what he’d learned about the way the executive branch had used a section of the USA Patriot Act to collect records from millions of Americans’ phones.
But he didn’t feel free to tell the American people what he knew.
"Senate rules regarding classified information prevent me from discussing the details of that ruling or how many Americans were affected, over what period of time," Wyden, a Democrat from Oregon, said in a carefully worded floor statement. Congress prides itself on being the most open of the three branches of government, where business is conducted publicly and constituents are welcome to watch. But the phone records controversy shows that even among the elected representatives of the people, secrecy can overcome open discussions of public policy.
Former Rep. Mickey Edwards, an Oklahoma Republican, says “the idea that the executive branch is able to tell the Congress of the United States that you can’t say this or that” is alien to the concept of Congress as an equal branch of government.
“Congress has forgotten its role. They have the ability to decide what’s classified: They make the laws, they write the laws,” said Edwards, who’s the director of the Aspen Institute-Rodel Fellowship in Public Leadership.
Jane Harman, the president and CEO of the nonpartisan Woodrow Wilson Center and a former Democratic member of the House of Representatives from California, said dealing with classification issues had grown extremely complicated for Congress, where she served on the House Intelligence, Armed Services and Homeland Security committees.
“It is the executive branch’s prerogative to classify,” she said. But, she noted, the rules governing classification often mean that entire documents that could be made public are withheld because of a single sensitive paragraph.
“It’s too complicated,” she said. “Instead of classifying a whole document because of one paragraph, redact the paragraph.”
The law at the center of the current controversy, Section 215 of the USA Patriot Act, has long been the subject of open debate. But the results of its application have been little discussed because those investigations remain classified.
The section allows the government to seek an order for “production of any tangible things (including books, records, papers, documents and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution.”
In practice, it led to a request for the daily delivery to the National Security Agency of records kept by the Verizon phone company of millions of cellphone accounts. Those records provided information such as which numbers had been called and how long phone calls had lasted.
The extent of how the law’s provision had been used was what Wyden felt he couldn’t discuss.
An intelligence reauthorization measure that set parameters for the agencies in fiscal 2013 and passed both houses of Congress last December was approved only after Wyden, who’s long spoken out about government potential for overreaching, had sections removed that he thought would put curbs on background briefings for reporters and public comments by former government officials.
Congress’ struggle with secrecy dates to the creation of the nation. Originally, the Senate and House weren’t required to meet in public, only to keep a journal of their proceedings. The House quickly opened up, since members had to run for re-election and wanted the public to notice them, while the Senate stayed closed for several years.
Senate Historian Donald Ritchie noted that the Senate kept its “executive sessions” – usually involving treaties and nominations – closed until 1929, bowing to the leaks that seemed to be coming from the senators themselves.
Since then, the Senate has conducted 53 closed sessions, including three in the last decade. Only one involved an intelligence matter, an Intelligence Committee probe into the Iraq war. The others involved a judge’s impeachment trial and a U.S.-India atomic energy pact.
The Senate has chosen to be bound by the executive branch’s secrecy rules, meaning that if someone violates them, he or she can be penalized – and that rarely if ever happens.
Congress has long struggled with how to deal with intelligence agencies. A Congressional Research Service report last year found the history “an often-perplexing, sometimes controversial and always difficult responsibility.”
Part of the problem, particularly since the Sept. 11, 2001, terrorist attacks, is that “not only does intelligence overlap both foreign and domestic areas, but it also covers a diversity of subjects, agencies and procedures within each.”
There’s also tension between the executive and legislative branches. A 6,000-page Senate Intelligence Committee report into alleged torture that occurred during the CIA’s secret terrorist-detention program has yet to be made public, more than six months after it was completed. The committee has deferred to the CIA the declassification of the report, which concludes, according to the committee’s public statements, that the CIA vastly exaggerated the value of so-called “enhanced interrogation techniques.”
Congress also has “become hesitant” on national security matters because most members don’t receive the same kinds of detailed national security briefings that the president does, Edwards said – an inequity that leaves Congress ill-prepared to challenge executive branch policies.
“The Congress has gotten so much into the idea of deference to the executive,” Edwards added.
Congress’ intelligence committees have broad authority over intelligence work. The Senate panel, headed by Dianne Feinstein, D-Calif., has 15 members: eight Democrats and seven Republicans. That ratio, unlike those of other committees, was set by law, so the committee would be encouraged to work in a nonpartisan fashion.
The committee members know they have a special mission.
“While all senators have access to classified intelligence assessments, access to intelligence sources and methods, programs and budgets is generally limited to Intelligence Committee members,” the committee mission statement says, though Defense Appropriation Subcommittee members also have that access.
President Barack Obama is required to make sure that the intelligence panel remains fully informed of intelligence matters. Agencies must tell the committee – usually in writing – of their activities and analyses, including covert actions and failures.
At times, though, Obama can inform only certain top officials of the committee, as well as Congress’ leadership, of certain covert activities. Other committee members will get general descriptions of such activities.
The House Intelligence Committee has 12 Republicans and nine Democrats. It closes its meetings if disclosing the information would “endanger national security, compromise sensitive law enforcement information” or meet other criteria.