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.”
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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.
“The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure,” the section reads.
The process begins with a committee vote. If a majority of members vote to declassify, and the executive branch continues to resist, the issue is taken to the Senate floor. The chamber can do one of three things: Approve the disclosure, disapprove the disclosure or allow the Intelligence Committee to make the decision.
Many of Capitol Hill’s Nixon-era heavy hitters backed the resolution, including a young senator from Delaware who now sits on the executive end of the intelligence debate: Joe Biden. When Biden’s office was asked via email whether the vice president would still support the Intelligence Committee’s ability to declassify information, it declined to comment.
The panel’s lack of muscle with intelligence agencies isn’t limited to the NSA collection program. Last year, the committee approved a 6,000-page investigation into the CIA’s so-called harsh interrogation program, which included waterboarding, secret prisons and allegations of torture.
The report cost $40 million and had taken years to complete. The committee’s current chair, Sen. Dianne Feinstein, D-Calif., has called it the committee’s most comprehensive and important oversight to date. Yet despite being completed last December, not a single page of the report has been released.
The CIA has disputed the report’s findings, and internal committee disagreements have kept it largely in the dark. Feinstein’s office said discussions were ongoing, but it gave no further details on where the declassification effort stands.
“If the Intelligence Committee cannot release its most important oversight piece, that calls into question the existence of the committee. What is it for, if it cannot provide the public with its most important report?” Aftergood said. “It’s all but unthinkable.”
Feinstein and other supporters of releasing the report could invoke Section 8 in an attempt to declassify portions of it. It’s unclear whether there will be an attempt to do so.
The last time a legislator attempted to have a congressionally commissioned report declassified, the committee itself stood in the way.
Then-U.S. Sen. Bob Graham, D-Fla., raised the issue in July 2003, when he pressed the panel to declassify portions of its inquiry into the 9/11 terror attacks, which the Bush administration wanted to keep classified. Graham, who’d chaired the Intelligence Committee from 2001 to January 2003, wrote to the committee asking that portions of the report, which he’d helped oversee while it was being compiled, be made public.
In an interview this month, Graham said he’d made the request when he’d realized how much of the report would remain classified, including an entire section devoted to what support the hijackers had received while they were in the United States. That hadn’t been his idea as the investigation was underway.
According to a letter Graham received in September of the same year, his request was denied without a committee vote. Then-Chairman Sen. Pat Roberts, R-Kan., and the senior Democrat on the committee, Sen. Jay Rockefeller of West Virginia, cited hearings with key intelligence officials to justify keeping the report classified.
“Based on this testimony and our own review of the information, it is our view that release of additional information from Part Four could adversely affect ongoing counterterrorism efforts,” the letter says. That part of the investigation remains classified 10 years later.
Graham said the response showed that even in the case of congressionally commissioned reports, the Intelligence Committee still yielded to executive agencies. He said he was disappointed at the Senate’s unwillingness to declassify its own work, even after so much time had passed.
“This material was developed by the joint inquiry,” he said, referring to the 9/11 Commission’s work. “This was not classified information that was made available to Congress by the executive. . . . I think it shows that there has been a strong deference to the executive branch.”
Graham also said that in his time as the chairman of the Intelligence Committee, no vote was ever taken to declassify information.
Some experts said that even though the provision hadn’t been invoked, it served a purpose as a negotiating chip when committee members were pressing the executive branch over the release of material.
“It’s always negotiated, and it goes back and forth. So this is one of the tools available to the Congress in negotiating for a release of information,” said Kate Martin, the director of the Center for National Security Studies in Washington, a nongovernmental civil liberties advocacy group.
But she agrees with those who say the Senate Intelligence Committee hasn’t asserted its authority to make information public.
“The question for the Intelligence Committee is whether or not in their discussions with the executive branch they make sure that the executive branch is aware of the power that they have to declassify themselves. That’s what should happen, and that’s what was missing in the last decade,” she said.
It may be missing because some current Intelligence Committee members aren’t fully aware of the power. Asked about the authority, Wyden confessed that he didn’t know the provision existed.
His Intelligence Committee colleague Sen. Tom Coburn, R-Okla., also said he wasn’t aware of it.
CORRECTION: An earlier version of this story said Feinstein’s office didn’t respond to a request for comment. We’ve since discovered and confirmed that Feinstein’s office didn’t receive our query.