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Almost forty years ago, a Senate select committee known as the Church Committee for its chair, Idaho Senator Frank Church, investigated America's secret government. The committee's investigation remains the most extensive of its kind in this nation's history. Now it is time for a new committee to examine our secret government closely again, particularly for its actions in the post-9/11 period.
This need is underscored by what has become a full-blown crisis, with Senate Intelligence Committee chair Dianne Feinstein accusing the CIA of spying on the committee, possibly violating the Constitution's separation-of-powers principles, the Fourth Amendment and other laws.
The Church Committee uncovered shocking conduct by numerous agencies, including the FBI, CIA and NSA. For example, the FBI tried to get Martin Luther King Jr. to commit suicide; the CIA enlisted the Mafia in its attempts to assassinate Fidel Castro; and the NSA and its predecessor, the Armed Forces Security Agency, obtained copies of most telegrams leaving America for a period of thirty years. An agency little known then but these days at the center of the news, the NSA's example provides an urgent warning. Its original aim was to decode encrypted telegrams sent home by foreign ambassadors. But then, exemplifying the "mission creep" that the Church Committee found endemic, the NSA trained its sights on anti-Vietnam War protesters and civil rights activists.
Many expected the Church Committee to focus its attention on exposing the abuses of the Nixon administration. But the committee's most important finding was that every administration from FDR's through Nixon's - four Democrats and two Republicans - had abused its secret powers. This finding helped the committee's internal cohesion and external impact.
The ability now to look into the post-9/11 secret programs conducted under administrations from both parties should add to the impetus to form a new committee. Several years ago, I testified before Congress in favor of creating a committee to investigate post-9/11 practices like secret torture and warrantless wiretapping. But an investigation then would have focused only on the Bush/Cheney administration, making partisan splits more likely. This was probably one reason that Barack Obama opposed such an investigation, indicating that he wanted to look forward rather than back. At the time, Senate Judiciary Committee chair Patrick Leahy quipped that "we need to be able to read the page before we turn it," but Obama prevailed.
Now the revelations by Edward Snowden confirm that a new investigation would have to cover more than one administration. Today's world of terror threats is different from the Cold War world that existed in the Church Committee's day. Today's technology is also vastly different. But those differences only add to the need for a new and comprehensive nonpartisan investigation.
As a result of the Church Committee, two institutions were created to check the enormous powers of our secret government: intelligence committees in both houses of Congress, and the court established under the Foreign Intelligence Surveillance Act. Over time, each has become a less reliable check. In addition, courts have bent over backwards to accept "state secrecy" claims by the Bush and Obama administrations. The same is true in Freedom of Information Act cases. On the other hand, some checks, including agency inspectors general, are stronger than before.
In addition to nonpartisanship, what is needed to ensure the success of a new select committee? To start with, it must be resolute in getting the facts, in pressing for government documents and witnesses. Executive agencies and the White House - whichever party is in power - will always resist such efforts. They will stall, they will rely on secrecy, and - if Feinstein is right - they may even spy on Congress and illegally impede its lawful investigations. These obstructions must be overcome.
On the other hand, a successful investigation must show that it can handle secrets responsibly. Two agreements made by the Church Committee in the '70s could also be implemented today. First, when documents are produced, an agency can redact the names of its informers (in, for example, the NAACP); then, if committee members need those names, they can press for them. Second, the White House and federal agencies can be permitted to see the draft reports and argue that certain details are unnecessary and harmful. One reason the Church Committee succeeded and the parallel House investigation failed was that the House was unwilling to make such agreements. It also leaked like a sieve, while the Church Committee had no substantive leaks.
A new select committee on intelligence must also be resolute on its right to disagree with the agencies concerning secrecy and to make the final decisions on disclosure - as the Church Committee did, for example, when it rejected White House and agency objections to disclosing the names of companies that gave telegrams to the NSA, as well as the names of higher- level officials involved in the plots to kill Castro and other foreign leaders.
Also, a committee cannot let an agency use its opportunity for comment to stall a report's release, as has happened recently with respect to the investigation of torture by the Senate Intelligence Committee. We now know that John Yoo's legal defense was embarrassingly wrong. Torture - or, as the Bush/Cheney administration euphemistically called it, "enhanced interrogation" - is illegal. The US government used techniques, like waterboarding, for which we had prosecuted Japanese officials as war criminals after World War II. President Obama found the program illegal and renounced it. Still, many officials - including Dick Cheney and some in the CIA - claim that "enhanced interrogation" was effective in protecting Americans.
This issue is apparently explored in the Senate Intelligence Committee's 6,300-page draft report, to which the CIA made a 122-page rebuttal in June 2013. The underlying documents remain classified, stalling the report's release. But after considering the CIA's rebuttal and any specific classification concerns, the committee should do exactly as Feinstein urges and release its report. Surely legitimate classification no longer applies to "enhanced interrogation."
But according to recent investigative articles in The New York Times, there is now a collateral issue. It turns out that, as Feinstein points out, an internal CIA study reached many of the same conclusions that the committee did: the methods were not effective, and CIA officials misled the government by claiming they were. In other words, the CIA's study, known as the "Internal Panetta Review," contradicts the agency's June rebuttal. The committee has that study. The CIA wants to investigate the committee's staff for obtaining it, claiming executive privilege and arguing that the agency did not produce it in response to the committee's document demands. But any executive privilege claim against the committee is weak, and the Panetta Review, as Feinstein insists, falls within the committee's demand for all documents concerning "enhanced interrogation." President Obama should end the CIA's stalling, and the committee should issue its report, including the information in the CIA's own study. To do otherwise undermines necessary committee oversight.
In order to propose future guidance, any investigation must expose past wrongdoing and mistakes. To do so, it has to say what individuals have done and make judgments on their responsibility. But a committee is neither a prosecutor nor a court. Accordingly, in 1976 the Church Committee expressed hope that its reports "will provoke a national debate not on `Who did it?', but on `How did it happen and what can be done to keep it from happening again?'" In that spirit, fairness requires recognition that most officials who broke our laws, undermined our values and sullied our traditions thought they were acting to protect us from grave threats. But a new investigation should nonetheless expose what happened and assess the damage. If it does so, then the words of Republican Senator Howard Baker in assessing the Church Committee's impact should prove correct. While dealing with the short-term effects may be hard, Baker said, "a responsible inquiry, as this has been, will, in the long run, result in a stronger and more efficient intelligence community." Particularly when the government's technological powers have become so awesome, the country needs a new nonpartisan, fact-based and comprehensive investigation of our secret government.
[Frederick A.O. ("Fritz") Schwarz Jr., who was chief counsel for the Church Committee, is currently chief counsel for the Brennan Center for Justice at NYU Law School. Schwarz is the winner of the 2014 Ridenhour Courage Prize, presented to an individual in recognition of his or her courageous and lifelong defense of the public interest and passionate commitment to social justice.]
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