Last week Keith Olbermann conducted a pair of interviews that gives a troubling look at the NSA’s domestic wiretapping operations. First, Olbermann talked with Russell Tice, a former NSA analyst who tells Olbermann that the NSA had access to all of the American’s peoples’ electronic communications, including those of journalists. Second, Olbermann talked to a New York Times reporter who is currently being pressured by federal prosecutors to divulge his sources for his 2006 book State of War, which focused on the CIA’s recent intelligence-gathering activities. The federal government hauled various former government officials before a grand jury and confronted them with phone records showing conversations between the government officials and Risen. Olbermann suggests that Risen’s phone records might have been obtained by the NSA using the dragnet surveillance program Tice has described.
It’s important to acknowledge that we don’t know if Risen was a target of the NSA program. Federal prosecutors do have legal powers to obtain the phone records of suspects without the knowledge of those suspects. It’s quite possible that the feds got Risen’s records using a valid subpoena under judicial supervision. However, the fact that we don’t know the full story is itself a serious problem. If Tice has described the program accurately and Risen’s phone records were obtained as part of such a surveillance program, that would be a pretty major scandal. Remember that even last year’s extremely permissive FISA Amendments Act didn’t legalize warrantless eavesdropping on purely domestic communications.
The problem is that we don’t know. And unfortunately, this is an area where our system of checks and balances have broken down. Congress has shown little appetite for performing one of its most important functions: investigating the activities of the executive branch to verify that the law is being followed.
Congress wasn’t always so timid. Thirty-five years ago, after another lawless president left office, we had not just one but three investigations of the prior administration: one in the House, one in the Senate, and one in the executive branch. The most successful of the three was the Senate committee that came to be known as the Church Committee. It produced a massive report documenting a ton of illegal activities by the executive branch over the preceding half-century. Gene Healy and I discussed a few of their findings here, and Julian Sanchez has a more thorough summary of the findings here.
In the forthcoming edition of the Cato Handbook on Policy, I argue that Congress should launch a broad investigation of executive branch surveillance abuses modeled on the Church Committee. Only by uncovering the full extent of domestic surveillance activities in the past can we craft sensible safeguards to make sure that abuses cannot happen again. I think there are three crucial factors in making a new Church Committee a success. First, it needs to be bipartisan. That is, it can’t focus merely on the misdeeds of the Bush administration. I recommend starting where the Church Committee left off and including the activities of the NSA, CIA, and FBI under presidents Carter, Reagan, Bush 41, Clinton, and Bush 43. If done right, this would be more than a fig leaf. Bill Clinton was hardly a doctrinaire civil libertarian, and so investigation might uncover real abuses that occurred under Clinton’s watch.
Second, it’s important that as much of the results as possible be made public. The lasting impact of the Church Committee was largely due to the sheer quantity of illegal activities it uncovered. If the Church Committee had only released information about the most egregious violations of the law, advocates of executive power might have been able to spin them as the work of a few bad apples. But because the Church Committee documented a pattern of law breaking involving dozens of people over the course of decades, under Democratic and Republican presidents alike, it became clear that there were systematic problems requiring systematic reforms. The passage of the original FISA Act was one of the most important results of the Church Committee report.
Of course, partisans for the recently-departed Bush administration will paint any effort by Congress to expose these secret programs as a partisan witchhunt that will aid the enemy. And obviously, Congress should be careful not to reveal details that could derail ongoing terrorist investigations or put undercover agents at risk, and the like. But there’s plenty of work Congress could do that is plainly neither a partisan witchhunt nor a danger to national security. The information the Electronic Frontier Foundation has uncovered regarding cooperation between telecom companies and the government would be a good place to start. Maybe Congress will find nothing improper happened there, but it’s important for the public to know what did happen so we can decide for ourselves.