Lawmakers’ wildly conflicting accounts of how much they knew about newly leaked surveillance programs has cast a new glare on the difficulties of congressional oversight of intelligence and the stratified rules about which members and staffers can be briefed on what.
Lawmakers on the Intelligence committees and their experienced staffers have almost unlimited access to the most sensitive programs, although there are limits even then to how much scrutiny they can apply to spy operations.
Other lawmakers can proactively seek out information about these programs but can’t talk to their own staffers about what they learn. Some never bother.
Those differences have played out in the game of political hot-potato that began last week with the disclosure of a sweeping surveillance court order that allowed the executive branch to collect phone record metadata on millions of U.S. citizens, as well as with the disclosure of a program called PRISM that collected Internet data.
President Barack Obama and administration officials assert that Congress was briefed on all of it and signed off on it. Some lawmakers agreed, but many said they were in the dark.
Asked by NBC News on June 8 whether lawmakers knew what they were voting on, Director of National Intelligence James R. Clapper Jr. answered, “I trust so.”
Asked whether Congress as a whole is well informed on intelligence issues, Jennifer Hoelzer, a former staffer for Senate Intelligence Committee member Ron Wyden, D-Ore., answered, “Not at all.”
On Sunday, Senate Intelligence Chairwoman Dianne Feinstein, D-Calif., suggested that the dynamic needed to change.
“One of the structures of highly classified ... is no staff,” Feinstein said on ABC’s “This Week” on Sunday. “I think that should be changed so that Intelligence Committee staff can come in with the member and go over and review the material.”
Feinstein apparently misspoke. A former congressional intelligence staffer said “the intel staffers all have access to this.” A Senate committee aide said: “All intel staff have access to all the details on these programs and ... we are always available to help members not on the committee.”
Feinstein said last week that 27 senators availed themselves of a June 6 briefing on the phone records program.
Sen. Jeff Merkley, D-Ore., said on MSNBC last week that he learned about the phone records program ahead of the leak only because he sought “special permission” to review the relevant documents.
But not all staffers have access to all of the information. Neither House nor Senate members can consult their personal staff about the information they get.
“I think it is a real problem for members of the committee to not have our own staff, even those with security clearances, available to work with us,” said Rep. Adam B. Schiff, D-Calif. “I would be very supportive of a change that would allow them to work with us so we have the institutional information and continuity.”
In the Senate, the Intelligence Committee does have designated staffers for members of the panel, but members cannot consult with staff in their offices.
“Put yourself in the shoes of members of Congress,” said Hoelzer, who recently founded IOC Strategies Inc., a public affairs firm. “You’re one of the very few members who went to an administration briefing. You couldn’t bring any staff. You couldn’t bring any experts. You couldn’t take any notes. How many members of Congress do you think are experts on metadata?”
Hoelzer said that committee staff helps, but committee staffers and Intelligence Committee members rely heavily on what they’re told by the intelligence community, which often presents the information in a biased way, describing how helpful a program is in preventing terrorist attacks.
And, she said, an intelligence staffer with intelligence expertise might still not grasp the technical nuances of complicated programs like those that recently were leaked, a view shared by Jim Harper, director of information policy studies at the libertarian Cato Institute.
“I think they’re poorly informed,” Harper said. Besides the rules against consulting with staffers and taking notes, he said, “perhaps most importantly, they aren’t equipped to understand what these programs do. It’s hard to figure out what the law is in these areas. Just as hard is the technical stuff.”
On the other hand, the Senate committee aide said sometimes no access to classified data is needed to conduct oversight of intelligence programs and vote on them. The PRISM program, according to Clapper, was authorized as part of the Foreign Intelligence Surveillance Act (PL 95-511) and discussed during debate on a reauthorization of a law updating FISA.
“Section 702 of the Foreign Intelligence Surveillance Act clearly authorizes, with FISA Court approval, a program by which communications of non-Americans outside the country can be collected,” the aide said. “While not all of the details have been previously made public, the nature of the surveillance and the protections in place to protect privacy rights are all written into the statute.”
One thing that might change the dynamic, said Hoelzer, would be to tackle the problem of over-classification.
“I think so much is being classified that it creates a situation where things you should be able to talk about, you can’t talk about,” she said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.