Everything Old…

e325971eebc3ccb1_landingIdaho Sen. Frank Church went to his grave nearly 30 years ago still being criticized by some, including Idaho politicians like the late Sen. Jim McClure, who should have known better (and probably did), for all the alleged damage Church’s various investigations in the 1970’s had done to the CIA, the FBI and the NSA. The criticism was bogus then and today’s headlines featuring new insights into the extent of government information gathering on Americans only serves to underscore the importance of Church’s investigations in 1975 and 1976.

As the media fixates on security leaker Edward Snowden and his every movement, it may be worth remembering the role Church played in uncovering the spying excesses of the super secret agencies that have done nothing but grow since the Idaho Democrat pulled back the curtain on their highly questionable – and illegal – action more than a generation ago. The resistance to Church’s investigations was fierce at the time. Dick Cheney was White House Chief of Staff  and a vocal critic. Imagine that. Today the response to domestic spying is perhaps best summed up by the out-to-lunch comments of a Tennessee Congresswoman who warned that her constituents wouldn’t like “some knee jerk reaction” in Washington to their own government’s secret snooping. She need not worry by all accounts.

A fine piece at the Harper’s website – appropriately entitled “On the NSA’s That ’70’s Show Rerun” – recounts the Church investigations and quotes two former Church staffers, Peter Fenn and Pat Shea.

“The Snowden Affair is a “rerun” of issues first uncovered during the 1970s, though these problems trace back to the earliest American efforts at espionage, says [Pat] Shea. Between 1975 and 1976, the Church committees produced more than a dozen reports detailing the illegal activities of the NSA, CIA, and FBI, which included opening mail, intercepting telegrams, planting bugs, wiretapping, and attempting to break up marriages, foment rivalries and destroy careers of private citizens. ‘We thought we put a stop to this wholesale collection of information on Americans forty years ago,’ says Peter Fenn, another former Church staffer.”

Church’s civil liberties sensibilities were already fine tuned when he discovered that the government had been opening mail the senator, a senior member of the Foreign Relations Committee, had sent to the then-Soviet Union. “It was an affront to his privacy,” says Shea, a committee deputy director under Church , “an affront to the separation of powers.” [Note: Pat Shea is a long-time personal friend, a Board member with me at the Andrus Center and an attorney in Salt Lake City.]

Church’s answer to the secret surveillance activities was to first expose as much as possible about the methods and motives of the rogue agencies and then to create FISA – the Foreign Intelligence Surveillance Act – that established a formalized process for judicial review of government requests for snooping rights. The fact that we now know almost nothing about the real operations of the so called FISA Court – the Court sits in secret and lacks anything approaching the adversarial nature of the American judicial process – would, I suspect, appall Frank Church. He objected to the lack of checks and balances in the secret system he uncovered, but he also abhorred the essential culture of secrecy in the intelligence community.

Few Americans, for example, realize that the intelligence budget is totally “off the books.” If you wanted, as an American citizen, to know what the CIA (or the NSA) spent last year you couldn’t find that out. It’s secret. We only know that the CIA is vastly larger and more involved with para-military activity today than it was in Church’s day. The super secret NSA – one book on the agency calls it the “Puzzle Factory” – has become the largest, most secretive and potentially most intrusive spy agency in the world.

The absurdity of the culture of secrecy surrounding the U.S. intelligence community was highlighted a couple of days ago when Oregon Sen. Ron Wyden and Colorado Sen. Mark Udall, two of the very few members of Congress who seem willing to push back against the NSA’s programs and secrecy, said publicly that the agency’s “fact sheet” on its efforts to protect the privacy of American citizens contained “significant” errors.

“Significant” errors is another way of saying lies. Yet, and here is the absurdity, the two United States senators cannot, without violating secrecy rules, state specifically what was wrong with the so called “fact sheet.” The NSA “fact sheet” has apparently been removed from the agency’s website where you’ll now find next to nothing about the story that has dominated the news now for more than two weeks. The NSA’s motto might well be, “we’re secret and we like it that way.”

Perhaps the most disturbing feature of this ’70’s Show re-run is the generally tepid response from Congress and the American people. Opinion polls seem to indicate the public is ho-humming the entire controversy and perhaps as a result poll-sensitive elected officials, with the exception of Wyden and Udall, are laying low. Again, I suspect, Church would be stunned. There is no more fundamental responsibility of the legislative branch of the federal government than that of checking the excesses of the executive branch, but Congress would prefer to use up its oversight bullets on made-for-TV controversies like the IRS review of non-profit applications. Few are calling for real and comprehensive oversight of the secret American government even though, as Max Frankel wrote recently in the New York Times, “information that is gathered and managed in secret is a potent weapon — and the temptation to use it in political combat or the pursuit of crimes far removed from terrorism can be irresistible.”

(By the way, Wyden and Udall are both members of the Senate Select Committee on Intelligence, another legacy of the Church investigations, as is Idaho Sen. James Risch. As far as I can tell no Idaho news organization has questioned the senator on the NSA revelations and he has made no formal statements. You have to wonder why? Risch did comment on the NSA issues in a Q-A with the Idaho Freedom Foundation’s sponsored Idaho Reporter website where he mostly dismissed the importance of Snowden’s leaks.)

Of course Americans want and expect to be safe from terror and those forces at home and away who would do us harm. At the same time, a free society by its very nature must balance its freedoms against its security. Today we seem unwilling to even engage in this debate and seem willing to accept at face value that the government is going to behave in a way that protects American freedoms.

I share my friend Pat Shea’s worry, as Harper’s put it, “that today’s hyperpartisan congress won’t enforce the checks and balances that are needed to keep rogue elephants in check.”  [Shea] “is among a growing chorus calling for a new Church Committee, an independent commission comprised of intelligence-savvy officials who will put the ideals of open, fair and effective government above short-term politics.” But don’t hold your breath waiting for Congress to attempt to do what Frank Church did nearly 40 years ago – hold accountable the most super-secret agencies of our government, the agencies most able, as Church wrote, to turn their methods and secrecy “around on the American people, and no American would have any privacy left.”

Church was “an ethical giant,” Shea says. “We now live, unfortunately, in a world of ethical midgets.” Frank Church understood American history and fundamental values and he had the political guts to expose the excesses of the intelligence agencies because he understood that no political system based on openness and accountability is really and truly free when it tolerates, in the name of security, governmental actions that are the very antithesis of openness and accountability.

Church warned us in the 1970’s. Is anyone listening in the 21st Century?

 

 

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