This piece appears courtesy of Lawfare, a website devoted to national security law.
On March 12 of this year, Senator Ron Wyden asked James Clapper, the director of national intelligence, whether the National Security Agency gathers “any type of data at all on millions or hundreds of millions of Americans.”
“No, sir,” replied the director, visibly annoyed. “Not wittingly.”
Wyden is a member of the Senate Select Committee on Intelligence and had long known about the court-approved metadata program that has since become public knowledge. He knew Clapper’s answer was incorrect. But Wyden, like Clapper, was also under an oath not to divulge the story. In posing this question, he knew Clapper would have to breach his oath of secrecy, lie, prevaricate, or decline to reply except in executive session—a tactic that would implicitly have divulged the secret. The committee chairman, Senator Diane Feinstein, may have known what Wyden had in mind. In opening the hearing she reminded senators it would be followed by a closed session and said, “I’ll ask that members refrain from asking questions here that have classified answers.” Not dissuaded, Wyden sandbagged the director.
This was a vicious tactic, regardless of what you think of the later Snowden disclosures. Wyden learned nothing, the public learned nothing, and an honest and unusually forthright public servant has had his credibility trashed. Unfortunately the tactic has a pedigree, but for that, we’ve got to wind the clock back 40 years.
Nixon and Helms
On February 2, 1973, President Richard Nixon, swept up in Watergate whirlpool that soon would bring him down, fired Richard Helms as the Director of Central Intelligence. To get Helms out of the way, Nixon nominated him as ambassador to Iran. The hearings on Helms’ nomination were the beginning of a five-year struggle to assert Congressional control over the intelligence business in general and the CIA in particular, culminating in the release of massive amounts of previously classified information, the passage of the Foreign Intelligence Surveillance Act or FISA, the creation of the House and Senate intelligence committees, and the passage of legislation creating inspectors general across the federal government. The era also produced the edict known as Executive Order 12333, which created rules under which intelligence could lawfully be gathered and which, with some modifications, remains in effect today.
The mid-1970s mark the Republic’s rebellion against unaccountable secrecy and the sometimes lawless behavior it enabled. J. Edgar Hoover, the FBI director, was too powerful to be fired and was widely known to have amassed secret dossiers on members of Congress and the President himself. The NSA had unhindered access to Western Union’s telegraph traffic. The CIA, contrary to its writ, was believed (correctly) to operate against domestic targets, and it appeared uncontrollable abroad. After coups in Iran and Guatemala, a botched invasion of Cuba, and operations against the leftist government of Chile that led to a coup there later in 1973, many on the Hill saw the CIA as a government within a government. The country was willing to tolerate secret and powerful intelligence agencies as a necessary tool of statecraft, but only if the rules under which they operated were public, and only if they were subject to legislated oversight mechanisms. This was background against which the United States did something never before accomplished by a major power: We turned intelligence into a regulated industry. But rebellions are messy affairs. The agencies’ budgets were brutally slashed, and our intelligence capabilities were undoubtedly damaged. When Congress reacts, its uses a meat axe, not a scalpel.
The hearings on the Helms nomination were the first legislative round in this affair, a power struggle between two Senate committees as well as a slug-fest between the Hill and the agencies.
In those days CIA oversight was handled by a joint subcommittee of the Senate Armed Services Committee, which authorized its secret budget, and the Senate Appropriations Committee, which appropriated the budget. The subcommittee, sometimes called “the Secret Seven,” was chaired by Senator Richard Russell. The chairman of the Senate Foreign Relations Committee, Senator William Fulbright, resented the arrangement but had been helpless to do much about it, and insofar as he had been able to get Helms to appear before his committee at all, the sessions had been closed, much to Fulbright’s displeasure. But now, on February 5, 1973, “the man who kept the secrets,” the very man who had been the director of central intelligence only three days before, was appearing before him in a new capacity, as nominee for an ambassadorial post, in an open hearing. Fulbright noted the novelty of the occasion with evident relish:
The Chairman: I think this is the first time you have ever appeared before this committee in open session, isn’t it?
Mr. Helms: That is correct, sir.
The Chairman: All these years.
Mr. Helms: In all these years.
The Chairman: Are you sure we were wise in having them in executive session?
Mr. Helms: Yes, sir.
Moments later Fulbright remarked that Helms, who had not been sworn as a witness in the committee room, was nevertheless under an oath to keep secrets:
The Chairman: Are you under the same oath that all CIA men are under when you leave the Agency you cannot talk about your experiences there?
Mr. Helms: Yes, sir, I feel bound by that.
The Chairman: You feel bound by that, too?
Mr. Helms: I think it would be a very bad example for the Director to be an exception.
When the hearings resumed two days later, Fulbright announced that Senator Sam Ervin, the chairman of the Senate Committee on Government Operations, was “interested in the operations of the CIA, if any, in its relation to the recent Watergate incident.” In a flash, Fulbright turned a hearing on a nomination into an investigative proceeding, which made it “appropriate,” he blandly mentioned, to put the witness under oath.
Having established two days earlier that Helms was under an oath not to divulge classified information, Fulbright put Helms under oath in an open session to answer truthfully whatever question was put to him. And so a snare was set. This was an impossible situation—a conflict between two oaths, both of which could be enforced by criminal prosecution—that had previously been avoided by an unwritten rule that had been enforced by Russell, who until 1969 had been the powerful, longtime chairman of the Senate Armed Services Committee. In the several years following the hearing, Congress would change the written rules on the statute books, but this was the day on which the unwritten rule was abandoned.
If Fulbright set the snare, Senator Stuart Symington sprang it. Symington served on both the Senate Foreign Relations and Armed Service Committees and was a member of the joint subcommittee that oversaw the CIA. Like Wyden questioning Clapper 40 years later, he knew the answers to the questions he was about to ask, and knew the answers were classified:
Senator Symington: Did you try in the Central Intelligence Agency to overthrown the government of Chile?
Mr. Helms: No, sir.
Senator Symington: Did you have any money passed to opponents of Allende?
Mr. Helms: No, sir.
Senator Symington: So the stories you were involved in that war are wrong?
Mr. Helms: Yes, sir.
Both men knew Helms was lying. Symington intentionally put Helms in a position where he had to choose between his conflicting oaths. This was the purpose of the question. Helms might have said that he would reply to the question only in executive session, but that statement would implicitly have confirmed information he was bound not to disclose. He might have been forgiven for taking that course, however, because by failing to do so he ended up pleading “nolo contendere,” or no contest, to the charge of not having testified “fully and completely” before a Congressional committee. He was duly judged guilty, fined $2,000, and given a two-year suspended sentence.
The Intelligence Committee Solution
No agency head should be placed in the position that Fulbright and Symington put Helms, and the establishment of the Senate and House intelligence oversight committees in 1976 and 1977, together with Executive Order 12333, should have eliminated any excuse for its happening again. Fulbright and Symington were rebelling not only against certain of the CIA’s activities but also against the nearly single-handed control that Russell had exerted over anything to do with the CIA. But it is impossible to divulge classified information to the Congress as a whole—535 members and their numerous staff—and think it can remain secret. There will always be members and staff who find or invent an excuse to divulge classified information. Russell knew that. The intelligence committees became the place where the executive could divulge information to selected members of both houses of Congress with a high degree of confidence that the secrets would be kept—but kept among legislators of both parties in both houses, not a single single senator—with considerable power to yank the agencies’ leash. As I first wrote nine years ago, these committees are “the clutch that permits two otherwise conflicting imperatives of two great branches of government to work more or less in synch.” They protect the executive's need for a reasonable degree of secrecy in the conduct of intelligence affairs, and they respect the legislature's demand for information about significant government operations and the uses to which appropriated funds are put. Or at least, that was the case until Wyden sandbagged Clapper. The fallout from this episode on the committees’ credibility as places that can keep secrets remains to be seen.
But let’s turn the glass around and look at it through Wyden’s end. Wyden concluded that the special court that oversees the Foreign Intelligence Surveillance Act, or FISA, was interpreting the law in a wholly novel way that permitted the government to collect vast quantities of telephony metadata. Telephony metadata is like the information on the outside of an envelope going through the mail. The Supreme Court has held that it has no constitutional protection. Unlike an intercepted call, metadata means only the number called and calling, the time of the call, and various other technical attributes of the call—but not its contents. The intelligence committees were told of this interpretation, and they did not object to it for two very good reasons. First, they were persuaded, as I am, that by doing so, the government was saving lives. And second, they were persuaded that while the data could be collected, it could not be accessed except under stringent procedures that were rigorously audited for compliance with the court’s orders. Among the hundreds of billions of calls made during 2012, this metadata was accessed only 300 times. This is an infinitesimal fraction, and on each occasion there was a documented justification. I do not believe, however, that most members of Congress, when they passed FISA, contemplated that the law could be interpreted as the FISA Court did, to permit the collection of bulk metadata.
Wyden therefore concluded that the FISA court was making secret law. This was at best an exaggeration. It is not unusual for legislators to accuse judges of making new law when they don’t like a judicial interpretation. Whether it was wise to classify so much information about the rules under which NSA was operating—in my view, it was not—that’s another matter. But let’s accept Wyden’s “secret law” position for the sake of argument. He served on a committee and took an oath to keep its secrets. The Senate intelligence committee has 19 members. Only one other member shared his view. The House intelligence committee has 23 members. None of them appeared to share his view. So what was a conscientious legislator to do?
The senator had two choices. He could have done what legislators are elected to do, which is to legislate. Without breaking his oath, he could have introduced a bill stating, for example, “Neither the National Security Agency nor any other agency or department shall acquire, collect, or otherwise gather bulk metadata (which he could define) of communications, all parties to which are in the United States.” That would be the gist of it. That bill would have generated ferocious debate, though realistically it would have died quickly. But Wyden is in a small minority in the legislature of a representative democracy. He doesn’t get to make the rules.
That would have left him with one honorable alternative: civil disobedience. He could have broken the law and, in the tradition of Socrates, Thoreau, Gandhi, and King—but unlike Edward Snowden—remained in the country to face the laws he deemed unjust and in the process, sought to undermine them. The consequences would probably have included resignation or removal from the intelligence committee and destruction of the committee’s reputation as a group that can keep secrets. But unlike Clapper, Wyden could probably not have been prosecuted for releasing top-secret classified information, because the Constitution’s Speech and Debate Clause would have immunized him from being “questioned in any other Place” about his statements in the Senate.
Wyden did neither of these things. He lacked the courage of his conviction, and instead of running any risk himself, he transferred it to the director of national intelligence, putting Clapper in the impossible position of answering a question that he could not address truthfully and fully without breaking his oath not to divulge classified information. Unlike Helms, Clapper was not under oath and therefore not liable to a charge of perjury, but Wyden did put Clapper in jeopardy of making or concealing a material fact or giving a false statement, a charge that carries a penalty of up to five years in prison. It was a low dishonorable act, and nothing good will come of it.
Joel Brenner was the inspector general of the National Security Agency from 2002-2006, the national counterintelligence executive from 2006-2009, and the senior counsel of NSA from 2009-2010. He is the author of America the Vulnerable: Inside the New Threat Matrix of Digital Espionage, Crime, and Warfare and the principal of Joel Brenner LLC in Washington, D.C.