By Nick Schwellenbach
schwellenbach@gmail.com

If Congress is serious about moving on government surveillance, it doesn't have to look hard to find some good questions – no further than an earlier Congressional investigation 32 years ago.

The United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (commonly known as the Church Committee), a committee chaired by Senator Frank Church (D-ID) in 1975, led to several major reforms of the intelligence community, including the creation of the congressional intelligence committees and the 1978 Foreign Intelligence Surveillance Act (FISA).  The questions the Church Committee set out to ask are more relevant today than anytime since and should be answered publicly, as they were in the 1970s.

Many basic questions regarding the National Security Agency's warrantless wiretapping program (arguably a program in violation of FISA) and others, for example, Department of Defense operations run through the Counterintelligence Field Activity's now-defunct TALON program, Department of Homeland Security's regional intelligence fusion centers, FBI-organized Joint Terrorism Task Forces and Field Intelligence Groups, have not been answered.

I start with a few excerpts, along with some of my thoughts in brackets, from the Church Committee's Book II, Intelligence Activities and the Rights of Americans, just to emphasize the platitude that the more things change, the more they stay the same:

"Governmental officials—including those whose principal duty is to enforce the law—have violated or ignored the law over long periods of time [reminds one of warrantless wiretapping] and have advocated and defended their right to break the law [reminiscent of Justice Department memos, signing statements, etc., some would argue]."

 "The Constitutional system of checks and balances has not adequately controlled intelligence activities….Congress has failed to exercise sufficient oversight, seldom questioning the use to which its appropriations were being put.  Most domestic intelligence issues have not reached the courts [because of the state secrets privilege invoked by executive branch lawyers, coupled with excessive judicial deference to the executive], and in those cases when they have reached the courts, the judiciary has been reluctant to grapple with them."

We don't know the answers to these questions and journalists, the public and, most importantly, Congress—which has the power and duty to compel the answers—need to ask them:

Q. Which governmental agencies [and I would add private entities working on their behalf] have engaged in domestic spying?

Q. How many citizens have been targets of Governmental intelligence activity?

Q. What standards have governed the opening of intelligence investigations and when have intelligence investigations been terminated?

Q. Where have the targets fit on the spectrum between those who commit violent criminal acts and those who seek only to dissent peacefully from Government policy?

Q. To what extent has the information collected included intimate details of the targets' personal lives or their political views, and has such information been disseminated and used to injure individuals?

Q. What actions beyond surveillance have intelligence agencies taken, such as attempting to disrupt, discredit, or destroy persons or groups who have been the targets of surveillance?

Q. Have intelligence agencies been used to serve the political aims of Presidents, other high officials, or the agencies themselves?

Q. How have the agencies responded either to proper orders or to excessive pressures from their superiors?  To what extent have intelligence agencies disclosed, or concealed them from, outside bodies charged with overseeing them?

Q. Have intelligence agencies acted outside the law?  What has been the attitude of the intelligence community toward the rule of law?

Q. To what extent have the Executive branch and the Congress controlled intelligence agencies and held them accountable?

Q. Generally, how well has the Federal system of checks and balances between the branches worked to control intelligence activity?

The last question is critical. After years of congressional acquiescence to the executive in many matters, we're starting to see some awakening and hard questioning.  However, there is a paucity of publicly-revealed oversight of intelligence agencies and whether or not their activities have violated or chilled the rights of Americans.  Many have turned to the courts as a last resort. But even when they have the stomach to do so the courts on their own are not equipped to undertake large-scale investigations of public policy significance—that’s the province of Congress and one reason why it exists in the first place.

Nick Schwellenbach is an investigator and blog editor at the Project On Government Oversight (POGO), an investigative non-profit organization in Washington, DC. E-mail: schwellenbach@gmail.com

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