Senate Intelligence Committee Has Been Able To Challenge Classification Of Documents For Forty Years; It's Just Never Done It

from the going-to-need-a-thorough-dusting-before-being-usable,-it-would-appear dept

Thu, Aug 15th 2013 8:47am — Tim Cushing

More problems have surfaced related to the overseers that are supposed to be providing the oversight the NSA keeps pointing to while swiftly sweeping terabytes of data under its brand-new Utah rug. A few representatives have expressed their frustration about keeping the public in the dark, but have seen little opportunity to rectify the situation due to the relevant documents being classified.

Ali Watkins, writing for McClatchy, points out that these reps' hands haven't actually been tied this whole time.

Outspoken members of the Senate Intelligence Committee have said frequently that they wanted to warn the public about the National Security Agency’s sweeping collection of telephone records but the program’s highly classified nature prevented them from making public reference to the programs.

That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it’s never been used.

The committee’s failure to make use of the provision even once, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question the intelligence agencies’ claims that something must remain secret.

Four decades without a single challenge being raised. That's rather odd (or obsequious, if you prefer), considering the provision was added with the intent of providing an adversarial avenue to prevent intelligence agencies from controlling the dialog. This addition was added as the Church Committee was replaced by the Senate Intelligence Committee.

Senators foresaw the likelihood of a conflict between the intelligence agencies and the legislative branch. The legislation that established the committee called for it to “provide vigilant legislative oversight over the intelligence activities of the United States.”

As a part of this oversight, Section 8 of the resolution lays out a process by which a member of the Intelligence Committee may seek the declassification of information that he or she thinks is of public interest, even if the executive branch labels the material top secret.

“The select committee may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure,” the section reads.

If these senators saw the possibility of conflict 40 years ago and deemed it necessary to add in some balance, why has every representative since that point refused to challenge intelligence agencies?

One reason is the Intelligence Committee itself, which has tended to take the side of the agencies or the administration. Back in 2003, Sen. Bob Graham challenged the classification of a portion of a report pertaining to the 9/11 attacks. Despite the fact that such challenges are supposed to be put to a vote within the committee, Graham received a letter back stating his request had been denied without a vote.

This problem continues to this day as the Senate Intelligence Committee headed by Dianne Feinstein and Saxby Chambliss has been more interested in coming to the NSA's defense and pushing through extensions of Bush-era policies with little to no debate. When the news first broke about the NSA's court order to Verizon demanding records on millions of customers, Feinstein and Chambliss said they'd known about the program since 2007. The problem is, many other senators didn't know, or didn't know the extent of the collections.

With representatives like Feinstein and Chambliss running interference for intelligence agencies, it's unlikely any such challenges would have survived a committee vote -- if they received one at all. But a larger problem is the fact that Senators themselves seem to be unaware such a provision exists, including one of the most vocal opponents of the NSA's programs, Ron Wyden.

Asked about the authority, Wyden confessed that he didn’t know the provision existed. His Intelligence Committee colleague Sen. Tom Coburn, R-Okla., also said he wasn’t aware of it.

Once again, we have an entity that the NSA points to as the all-important "oversight" being cut out of the loop by those heading up a committee that should, at least part-time, engage in an adversarial role. The Intelligence Committee's leaders have gone completely in the opposite direction, acting as a PR flack for the agency and holding as many cards as possible close to their chests.

If Feinstein and Chambliss were aware of this provision, they certainly never attempted to use it, much less inform anyone critical of the government's surveillance programs. Those heading up the House Intelligence Committee have withheld information from both long-term Congressmen and newly-elected representatives. It's not much of a stretch to believe the Senate Committee has done the same.

That the NSA uses the term "oversight" to grant its overreach an air of legitimacy is no small matter. It's very hard to believe the agency heads are ignorant of the protective wall these committee heads (both in the House and the Senate) have erected around them. But it's even more disturbing to find out this sort of behavior has gone on for nearly four decades -- that representatives aware of the provision allowing them to challenge overclassification have instead chosen to place the interests of these agencies ahead of the interests of the public.

The idea of a secret agency being "subject" to oversight has always been a bit of a joke. As more ugly truth has risen to the surface, the joke has morphed into a profane buzzword the agency tosses around as post facto whitewash to give all of its transgressions a thin sheen of respectability.

The real problem is that the committee and the agency's desires seem to be permanently intertwined. If 40 years have gone by unchallenged through regime changes and periodic bursts of "throwing the bastards out," it's unlikely the next 40 years will bring any remarkable changes.

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Filed Under: classification, dianne feinstein, over classification, ron wyden, saxby chambliss, senate intelligence committee

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Ninja (profile), 15 Aug 2013 @ 7:36am

Asked about the authority, Wyden confessed that he didn�t know the provision existed. His Intelligence Committee colleague Sen. Tom Coburn, R-Okla., also said he wasn�t aware of it.

This highlights an endemic problem that plagues every single country: laws are obscure and NOBODY can amass knowledge of the entirety of them simply because there are far too many, they are usually long streams of unintelligible legalese and they change and are added at an incredibly fast pace in part because the lawmakers need to patch holes that older, bad laws puncture into any reasonable judicial system. If not even the ones making the laws know them in their totality how the fuck can an ordinary citizen be expected to know everything that goes beyond common sense?

If 40 years have gone by unchallenged through regime changes and periodic bursts of "throwing the bastards out," it's unlikely the next 40 years will bring any remarkable changes.

Or not. There has been no public interest in the last 40 years to fuel a change in behavior. However with the likes of Rogers and Feinstein in the committee it's fairly clear we'll need to wait a few more years and enlightened American voters to see them out before anything will even happen. Or will the public pressure mount to the point they'll be forced to change stuff? Time will tell.
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out_of_the_blue, 15 Aug 2013 @ 8:55am

Geez, will ya get over your shock that politicians are corrupt?
MOVE ON, PEOPLE. You're up against iron law facts of human nature. Politicians act only to gain and exercise power. NOT one of them is worth investing hope.

What we need is to quit yapping and actually start resisting the surveillance society. -- Starting with Google and Facebook, and yeah, I just LOST you kids who've been raised in the current corporatist culture and think it's NORMAL for corporations to be allowed to do whatever they wish! -- But corporatism (which is fascism by another name) has been tried and found to be among the worst dangers to humankind.
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Anonymous Coward, 15 Aug 2013 @ 9:04am

Congressional leaders have too much power
There's no reason why today we need a vote schedule or agenda controlled by committee or branch leaders. We should have an online system for reps to gather support for their legislation. Once they have a majority of members supporting the last modified version of the bill, then its passed, regardless of what Boehner, Reid, or a committee leader allows through the gates.
This would allow them to not have to be in DC as well.
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Anonymous Coward, 15 Aug 2013 @ 9:06am

If they weren't aware of such a law, then they should have proposed it.
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SolkeshNaranek (profile), 15 Aug 2013 @ 9:15am

Congress
Congress: Long on talk, very short on action, and bereft of the knowledge necessary to perform their function.

Reflecting on the actions of our politicians lately, I think it would be more efficient and cost effective to have a bunch of monkeys do their job.

Monkeys seem to have about the same amount of knowledge of the law, around the same attention span, able to work for less, will certainly cause less harm to the citizens, and most assuredly tell far fewer lies.

Of course, lobbyists bearing bananas might be a problem, but happily monkeys will forget about the lobbyists once the bananas have been eaten.
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FM Hilton, 15 Aug 2013 @ 9:18am

Actually, something just occurred to me
"There's no reason why today we need a vote schedule or agenda controlled by committee or branch leaders. We should have an online system for reps to gather support for their legislation. Once they have a majority of members supporting the last modified version of the bill, then its passed, regardless of what Boehner, Reid, or a committee leader allows through the gates.
This would allow them to not have to be in DC as well."

You know what? If we use this reasoning a step further, we, the people could do the actual job the Congress has refused to do for 40 years.

That's right! We could vote on and pass laws that benefit us, not just some of us. We could actually change the world, because we would be in charge of it, not them.

It's very possible now-the Internet has done that. We can protest against bills like SOPA and get them shut down.

Who's to say we can't take back control of our country the same way?

Put a bill up for popular vote and see how far it passes. Bet the lobbyists wouldn't like that one at all.
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Anonymous Coward, 15 Aug 2013 @ 9:19am

"Despite the fact that such challenges are supposed to be put to a vote within the committee, Graham received a letter back stating his request had been denied without a vote."

Gee, this sounds an awful lot like...

"But just over four weeks later, the Chairman of the Committee, GOP Rep. Mike Rogers, wrote to Grayson informing him that his requests had been denied by a Committee "voice vote". "

The Intelligence committee is corrupt and has zero credibility. That's all there is to it. Traitors of the Constitution and the American people they're supposed to represent.
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Anonymous Coward, 15 Aug 2013 @ 9:25am

Re: Actually, something just occurred to me
Put a bill up for popular vote and see how far it passes.

I share your frustration. Really, I do.

But this would be even worse. Consider that you, random person commenting on TechDirt, are likely WAAAAAY more intelligent than the average American.

Now consider that half the people in the country are less intelligent than the hypothetical average American.

There is no way the process can be improved by letting those inferior people anywhere near it. They are ignorant, unthinking, idiotic sheep -- easily manipulated by whatever demagogue or celebrity that comes along and tells them what they want to hear. If they got their hands on the machinery of legislation, the US would descend into civil war within five years.

So yes, the current situation sucks, sucks, sucks. The suckage is vast and annoying. But I would rather have this than allow what you propose.
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Anonymous Coward, 15 Aug 2013 @ 9:35am

Re: Congressional leaders have too much power
I think there IS a mechanism where if you can get over half the members to support something, you can force a vote regardless of what the leaders try to do. It's just not used all that often. Maybe because it involves going against those powerful leaders and chairmen.

I would be leery of anything online, though. Too many ways for that to go wrong.
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Anonymous Coward, 15 Aug 2013 @ 9:40am

Re: Re: Actually, something just occurred to me
I mostly agree. Think of it this way: Would you rather your lawyer draw up a contract, or you? Even though you have a better idea of what you want, and are probably a reasonably smart person, your lawyer knows what legalities are needed.

In the same way, it can be advantageous for lawyers to represent us to write and modify the law.
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lucidrenegade (profile), 15 Aug 2013 @ 9:48am

Re: Actually, something just occurred to me
As far as I know, there is no way for a person/group to put an issue on the ballot at the federal level, like you can in some states.
I'd imagine that it would take a constitutional amendment to change that, and I don't see the politicians ever doing that.
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lucidrenegade (profile), 15 Aug 2013 @ 9:53am

Re: Geez, will ya get over your shock that politicians are corrupt?
It's really sad how you can occasionally make good points, but then have to descend into attacks on Mike or some rant about Google.
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6, 15 Aug 2013 @ 10:07am

I figured something like this probably existed back when Mike et al. started all the time talking about this subject years ago. The thing is that the congress simply doesn't have the will to get things done these days. That's why it's approval rating is so low.
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saulgoode (profile), 15 Aug 2013 @ 10:27am

Re: Geez, will ya get over your shlock?
What we need is to quit yapping and actually start resisting the surveillance society. -- Starting with Google and Facebook,...
Erm, yeah. Already done that. I choose not to use Google's services. I choose not to use Facebook. Or MSN. Or Skype. I can, and do, opt out of all of these services, largely because I don't think the benefits offered overcome the invasion of my privacy.

Thing is, I can't opt out of the government surveillance; the only choice is to attempt to get the government to change its decision that such surveillance is constitutional and/or beneficial.
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Anonymous Coward, 15 Aug 2013 @ 10:29am

Re: Actually, something just occurred to me
Actually, the potential for abuse there is worse. Consider, for example, Fox News as a proposer of legislation. Or CNN. Or NBC.

Consider that this would be used as a false-law magnet, regardless of the actual intent or rationale for such a system.
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John Fenderson (profile), 15 Aug 2013 @ 10:43am

Re: Geez, will ya get over your shock that politicians are corrupt?
MOVE ON, PEOPLE.

That is pretty hilarious coming from you. Physician, heal thyself!
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Ninja (profile), 15 Aug 2013 @ 10:44am

Re: Re: Geez, will ya get over your shock that politicians are corrupt?
Indeed. Since 99% of his babblings are useless attacks that completely miss the point we should simply report and ignore without replying. I'm trying to follow this line. He can get his omniscience of everything and stick it in his ears.

What I find it amusing is that he keeps yelling we should resist surveillance society, that the rich are evil and so on but when Mike or anybody else exposes and rises awareness (which is key to defeating these bad stuff) he flips and starts attacking them. Leave him alone in his delusions.
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John Fenderson (profile), 15 Aug 2013 @ 10:45am

Re: Re: Re: Actually, something just occurred to me
Lawyers writing and modifying laws is one of the reasons why laws are so incomprehensible that lawyers are required to even start to understand them.

It's the ultimate in job security.
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Eponymous Coward, 15 Aug 2013 @ 11:01am

Derail ahead...
For whatever reason this reminds me of Jury Nullification, probably since they are both checks against the misuse of power that no one really knows exist. For those curious, Jury Nullification is when a defendant is shown beyond a doubt that they are guilty of a crime, but the jury delivers back a not guilty verdict on the basis that they disagree with the Very law itself. This means that jurors can overturn laws they disagree with by setting court prescedents that can be used in other cases. The ideal is that our representatves then would be forced to amend the particular law to square it with the peoples' will.
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Tony, 15 Aug 2013 @ 11:38am

Just goes to show
That our representatives 40 years ago were smarter and actually cared about doing good things for the country and it's people.
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Anonymous Coward, 15 Aug 2013 @ 11:42am

Perhaps the senate intelligence committee is choosing, like the NSA, to use alternate definitions of terms. "Oversight" for example, has more than one meaning. ;)
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John Fenderson (profile), 15 Aug 2013 @ 11:59am

Re: Just goes to show
Maybe. Or, maybe, it's that in 1973 the CIA was out of control in a very public way (that was even more egregious than anything the NSA has been doing recently) and the public was getting damn well sick of it. To the point that the Church Committee started its work in 1975.

This may have been a PR move by congress -- one of those do-nothing gestures meant to calm public ire.
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Jasmine Charter, 15 Aug 2013 @ 12:52pm

Don't worry...
Don't worry... we can't do anything wrong... the blind & deaf man is watching us.
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The Groove Tiger (profile), 15 Aug 2013 @ 1:50pm

Re: Geez, will ya get over your shock that politicians are corrupt?
>> out_of_the_blue analysis complete
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The Groove Tiger (profile), 15 Aug 2013 @ 1:51pm

Re: Re: Geez, will ya get over your shock that politicians are corrupt?
1% relevance
99% hot air
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Anonymous, 15 Aug 2013 @ 3:00pm

Re: Geez, will ya get over your shock that politicians are corrupt?
And once again OOTB's comment has been flagged simply because it comes from OOTB.
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FM Hilton, 15 Aug 2013 @ 4:58pm

Re: Re: Actually, something just occurred to me
Sad to say, you're right. As I was thinking it over after I'd posted it, the thought occurred to me that there are too many people too easily swayed by the likes of Rush Limpbag and his ilk, who would choose to vote for whatever red hot topic would be on the agenda, not caring if there were facts that would be left out.

Sad also that the state of American education is that a poster on Techdirt has far more intelligence and intellectual capacity than someone from the average American household.

When that's the case, it would be a very small group of 'superior' people deciding the fate of laws that govern this land.

Wait-that's already the case. Shit, it's just damned hard to beat the system anymore.
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Anonymous Coward, 16 Aug 2013 @ 8:08pm

Re: Re: Geez, will ya get over your shock that politicians are corrupt?
No, flagged for irrelevance and ad hom.
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