Intelligence Oversight

Why Intelligence Oversight Matters: Congress Is Key to a Public Debate

By Jane Harman
Friday, May 13, 2016, 8:08 AM

Editor's Note: Zachary Goldman and Samuel Rascoff recently released Global Intelligence Oversight: Governing Security in the Twenty-First Century. The edited volume “is a comparative investigation of intelligence oversight systems in democratic countries, which focuses on some of the new dynamics shaping and constraining intelligence services, and the range of purposes a holistic approach to oversight should serve.” This week, Lawfare is hosting a mini-forum where contributing authors discuss their chapters.

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Last spring, scholars from around the world travelled to the Wilson Center to debate new frameworks for intelligence oversight. Few of them came to stick up for the old regime – for the American Congressional committees (and similar foreign structures) that were set up to prevent or rein in spy agency overreach. I won’t deny that Congress has flaws: toxic partisanship, rampant brain drain, not to mention the influence of big money. Still, members of Congress have a critical role to play in ensuring that our espionage programs are considered both lawful and legitimate. And despite significant obstacles to their success, the Senate and House Intelligence Committees remain relative islands of sanity.

The George W. Bush administration made a major mistake in bypassing Congress to set up the post-9/11 surveillance architecture. As someone who was briefed on those efforts as Ranking Member on House Intelligence, I can tell you that no substantive debate was ever held outside the executive branch, let alone the kind of discussion that could have addressed well-founded concerns or established an overarching legal framework. A more thorough conversation could have helped mitigate unnecessary tension between security and liberty. Instead, the decision to rely on the President’s Article II Commander-in-Chief authority did lasting damage to the relationship between our citizens and our spies. It later took a titanic effort to bring those programs under law in the FISA Amendments Act of 2008, and too many Americans remain unconvinced of their basic legitimacy.

In 2013, Edward Snowden reset the public conversation again. Many members of Congress—never mind their constituents—woke up to discover that the Administration’s interpretation of surveillance law differed from that of the men and women who wrote it. Properly understood, I believe our signals intelligence programs are lawful, necessary, and effective, both in combatting terror and countering foreign rivals. But vanishingly few people properly understand our signals intelligence programs, which were established and justified in secret. Many people, lawmakers included, continue to fundamentally misconstrue key aspects of our surveillance apparatus. The intelligence community now faces the worst of both worlds: a public that knows just enough about its spies to mistrust them, but not enough to understand what they do. This state of affairs should be a reminder that there is no substitute for a robust public debate, and there is no better forum for that conversation in the United States than Congress.

There are signs of progress toward a stronger dialogue. Just this week, the Senate Judiciary Committee began public hearings on reauthorizing Section 702 of FISA, which expires at the end of 2017. I can’t remember the last time Congress launched a debate with nineteen months to spare. In many respects, the conversation around Section 702 challenges lawmakers to be uncharacteristically responsible. The activities that it authorizes are both more nuanced and more necessary to our national security than the bulk collection of telephone metadata that Congress debated—and reformed—last year.        

I’m also encouraged by the conversation surrounding cybersecurity, especially encryption, one of the most significant questions facing the intelligence community today. Before the high-profile battle between Apple and the FBI, I would have told you that there was no appetite for a public debate about cryptography, secure computing, and baroque software engineering. But Americans concerned about hackers, spies, and terrorists have taken a clear interest in these issues, and Congress is following their lead.

That’s why I recently joined with former Speaker Newt Gingrich to back a promising proposal for a national, bipartisan commission on encryption, put forward by Representative Michael McCaul (R-TX) and Senator Mark Warner (D-VA). Independent of that effort, the House Judiciary and Commerce Committees have launched their own working group. Meanwhile, the Senate Intelligence Committee is exploring legislation, and every think tank in Washington has poured resources into tough technology questions. The Wilson Center, for its part, launches the second class of its Congressional Cybersecurity Lab today.

I’m not ready to say that we’ve learned this lesson of post-9/11 intelligence collection: that surveillance activity must be conducted within a framework built on public discussion, reflecting public buy-in. But the trendlines are promising. According to a famous anecdote from the 1970s, when the CIA tried to brief a senator on a covert operation, he answered, “No, no my boy. Don’t tell me. Just go ahead and do it, but I don’t want to know.” We’ve made enormous strides on oversight since; I hope the dialogue only grows in the years ahead.