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Congress’s Oversight of Domestic Spying Fails for Many Reasons, Scholars Say

At a Senate hearing in March, the director of national intelligence, James R. Clapper (pictured in 2011), denied collecting data on millions of Americans. That was not true, but few members of Congress may have been in a position to challenge his assertion. (Bill Clark, Roll Call, Getty Images)

The revelations from Edward Snowden that the National Security Agency has been tracking the communications of millions of Americans seem to have surprised Congress as much everyone else.

“Snowden, I don’t like him at all,” said Rep. Ted Poe, a Texas Republican, during a House Judiciary Committee hearing last week, “but we would have never known what happened if he hadn’t told us.”

But to scholars who study Congressional oversight of the government’s intelligence agencies, this is hardly news.

Their analysis is unsparing: Legislators are ill equipped to handle the complexities of the country’s fast-growing intelligence industry, turf battles prevent them from carrying out their duties effectively, and the intelligence agencies themselves conspire with the executive branch to limit access to information.

“It’s hard not to be cynical,” admits Jennifer D. Kibbe, an associate professor of government at Franklin & Marshall College who has written about what she sees as the failures of oversight.

In a 2010 article in the journal Intelligence and National Security, Kibbe lays out a series of interlocking problems that make such failures inevitable. One is jurisdictional complexity. The two main oversight bodies in Congress, the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence, have limited authority. The intelligence community has become so vast, she notes, that it extends into a host of departments, including Energy, Justice, and Treasury.

Moreover, the ability to finance—or kill—particular programs rests with yet another set of committees, further diminishing the ability of legislators ostensibly in charge of oversight to govern the activities of the security agencies.

“No one committee,” Kibbe writes, “has a complete view of the intelligence community to be able to judge priorities and weigh programs against each other.”

‘Pressure to Not Get in the Way’

Then there is the problem of access to information. In short, members of Congress only know what the intelligence agencies and the executive branch tell them. In her article, Kibbe describes agencies dragging their feet when asked to provide reports by Congress. Even when legislators get information, it is delivered in a way that is difficult to absorb or share. Briefings are confidential and can be limited to an even smaller “Gang of Eight,” who cannot take notes or bring the aides on whom they rely for expertise.

As a result, says Kibbe, legislators may not know what to look for or what to ask when presented with complicated information.

Those limited briefings have led to controversies in the recent past, including what Congress did or didn’t know about the Bush administration’s warrantless wiretapping program in 2005 or its use of “enhanced interrogation techniques.”

“There’s such a huge informational disadvantage,” says Kibbe. “Even when they’re briefed, they’re briefed in such vague language, and all the time the administration is pushing the terror-terror-terror line, so you feel pressure not to get in the way because if something happens, it’s your fault.”

In the case of the Internet- and telephone-surveillance programs run by the National Security Agency, which were revealed last month in news-media reports on classified information provided by the former NSA contractor Edward Snowden, it is unclear how many in Congress fully understood the scope of the programs before then.

Sen. Ron Wyden, an Oregon Democrat who sits on the Senate intelligence committee, had been trying to raise alarms about the surveillance programs for a while, Kibbe says, most recently in March, during a rare public hearing of the committee. There, he asked the director of national intelligence, James R. Clapper, if the NSA had collected “any type of data at all on millions or hundreds of millions of Americans.”

Clapper was not truthful in his response—for which he later apologized—but there was little Wyden could say then without revealing the classified program.

Inactivity. Scandal. Reform. Repeat.

Congress is hardly blameless for this situation, scholars say. Some of the limits it faces in effectively overseeing the complex intelligence community are self-imposed. Amy B. Zegart, co-director of the Center for International Security and Cooperation at Stanford University and an expert on intelligence, writes in “The Roots of Weak Congressional Oversight” that “electoral incentives and institutional prerogatives have led Congress to tie its own hands and block oversight reforms even when the problems are known and the stakes are high.”

It’s also a challenge for legislators to offer sustained attention to any one issue, says Loch K. Johnson, a professor of public and international affairs at the University of Georgia. “Congress tends to be a reactive institution,” he says. “It really takes a shock in the intelligence system in order to have members focus full attention on the issue at hand.”

Johnson, a longtime scholar of national security who has also worked as a Congressional aide on intelligence issues, sees historical patterns in how the NSA revelations are playing out on Capitol Hill today. The first meaningful instance of intelligence oversight began in the 1970s, he notes, when a series of scandals prompted a major Congressional investigation headed by Sen. Frank Church. (The investigations also led to the creation of the House and Senate intelligence committees.)

Those early scandals, which included domestic spying through such means as mail tampering and wiretapping, gave birth to the Foreign Intelligence Surveillance Act. The law, enacted in 1978, was designed to place limits on—and provide oversight of—domestic spying. In the years since the September 11 attacks, the law has been repeatedly amended in ways that complicate efforts at oversight. Government officials and the public are now attempting to sort out what the law does and should allow with regard to the current surveillance programs.

After that initial flurry of investigations and intelligence reforms, says Johnson, Congress did not do much until another scandal—Iran-Contra, in the 1980s—brought intelligence oversight back into the spotlight. That same pattern—inactivity, then scandal, then reform—has continued ever since.

“It’s an old story of not really being focused enough on accountability until something goes wrong,” he says. “Then Congress begins to behave in a more constitutional fashion and holds hearings and takes these matters seriously.”

Both Johnson and Kibbe think the intelligence committees should demand more informative briefings and could do more to push for public debate about the surveillance programs, without revealing classified information.

Johnson, for one, says that effective oversight has often rested on the shoulders of particular individuals—people like Sen. Frank Church, in the 1970s, and Rep. Lee Hamilton, who headed the House intelligence committee in the 1980s. They acted as true watchdogs, he says, studying the issues carefully and asking tough questions. Otherwise, the bureaucracy tends to take over, allowing legislators to slip away to focus on the more immediate, and transparent, interests of their constituents.

“Democracy,” says Johnson, “ends up depending on the energy and willingness and commitment not of a whole committee—because that rarely happens—but of at least a few members, who keep the spark of accountability alive.”

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