Modern field guide to security and privacy

Opinion: Congress should unveil American surveillance

The US intelligence community still appears to be violating Americans' privacy with domestic spying operations. But to reform these actions, Congress first needs to know how spies really operate.

Carlos Barria/Reuters
From left, FBI Director James Comey, Director of National Intelligence James Clapper, and CIA Director John Brennan at a Senate Intelligence Committee hearing in February. REUTERS/Carlos Barria

Revelations that Yahoo allegedly scanned hundreds of millions of user emails for the National Security Agency and the FBI underscores the pressing need for Congress to reevaluate federal surveillance policies.

But before they can resolve the perennial tension between liberty and security, rank-and-file members of Congress would first need to be granted something they're denied: access to intelligence information.

Though other members of the House of Representatives have a constitutional obligation to vote on intelligence issues, an estimated 95 percent of them aren't "in the know," meaning their offices don't have clearance to see top-secret documents.

Therefore, they are forced to rely on executive summaries or reports and briefings provided to them by House Permanent Select Committee on Intelligence (HPSCI). This is true even for members of such committees as Judiciary and Homeland Security, which have jurisdiction over some intelligence issues. 

Under current rules, ordinary members cannot take notes during their briefings, cannot consult personal trusted staff, and cannot even talk with whistleblowers, thanks to House rules mandating all intelligence matters go through HPSCI and their designated staff. This lack of accountability hinders the House's ability to conduct thorough oversight of the intelligence community.

Recent efforts to heighten Congress's ability to oversee the increasingly powerful, autonomous surveillance apparatus have not been successful. Most notable of these was a proposed amendment to 2014's National Defense Authorization Act from Reps. Justin Amash (R) of Michigan and John Conyers (D) of Michigan to end the NSA's blanket collection of Americans' telephone records. Though it fell short, the 205-217 tally for the Amash-Conyers provision demonstrates there is a bipartisan appetite for intelligence oversight reform.

What is particularly shocking about this episode was how little information about the NSA surveillance program most members of the House actually knew about. There was clearly a divide in information between HPSCI and the vast majority of representatives, who have limited access to intelligence. 

Instead of being fully informed on the issues they are constitutionally mandated to vote on, members who aren't "in the know" are forced to rely on HPSCI to inform their votes. Rep. Amash explained the process of ascertaining information as a game of 20 questions while speaking at a libertarian event in 2013.

"You ask a question and if you don't ask it exactly the right way you don't get the right answer. So if you use the wrong pronoun, or if you talk about one agency but actually another agency is doing it, they won't tell you. They'll just tell you, no that's not happening. They don't correct you and say here's what is happening," he said.

"So you actually have to go from meeting to meeting, to hearing to hearing, asking questions – sometimes ridiculous questions – just to get an answer. So this idea that you can just ask, just come into a classified briefing and ask questions and get answers is ridiculous."

If Congress is going to do a better job of monitoring the activities of the intelligence community, they must rewrite the rules of engagement dramatically. 

It should provide all members of Congress with staff to consult on sensitive intelligence matters. It should make HPSCI more transparent so that all members are properly informed on data releases and hearings. Congress should strengthen the ability of its members to work with whistleblowers. HPSCI should also be more responsive to requests from most members who want further information or need help to understand sensitive matters. And HPSCI shouldn't be controlled just by party leadership. 

The best way to make these changes would be through the rules package adopted routinely by each new Congress. When the 115th Congress convenes in January, it ought to adopt these changes to enable all members to conduct proper oversight over the intelligence community. With a new president set to take office in January, it is essential that all of Congress be equipped to fulfill its constitutional responsibility as a check on the executive branch.

Nathan Leamer is a policy analyst and the outreach manager for the R Street Institute, a nonprofit, nonpartisan, public policy research organization. Follow him on Twitter @nathan_leamer.

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