By Mark M. Jaycox and Lee Tien
Last week, press reports revealed more about the National Security Agency's (NSA) elite hacking unit, the Office of Tailored Access Operations (TAO). The press also helped the public grasp other NSA activities, like how it's weakening encryption. All of this is on top of the NSA's collection of users' phone calls, emails, address books, buddy lists, calling records, online video game chats, financial documents, browsing history, and calendar data we've learned about since June.

By contrast, thus far Congress as a whole has done little to help the public understand what the NSA and the larger intelligence community is doing. Even members of Congress seem to learn more from newspaper reports than from "official" sources.

Regaining Congressional Oversight

Something is very wrong when Congress and the public learn more about the NSA's activities from newspaper leaks than from the Senate and House intelligence committees. The committees are supposed to oversee the intelligence community activities on behalf of the public, but more often--as the New Yorker  describes it--"treat[] senior intelligence officials like matinée idols."

It's time for Congress to reassert its oversight role and begin a full-scale investigation into the NSA's surveillance and analytic activities. The current investigations--which aren't led by Congress--are unable to fully investigate the revelations, Congressional committees' hearings have added little, and Congress cannot rely solely on mandating more reports from the NSA as a solution.

Hearings Inside Congress

So far, Senate Judiciary Committee Chair Patrick Leahy is valiantly attempting to shine more light on the NSA's activities, but the hearings have only served as venues for administration officials to parrot talking points and provide non-answers to important questions. This is very similar to what happened after the New York Times  released the first reports of warrantless wiretapping in December 2005.

The hearings' ineffectiveness are shown by the fact that it took three hearings--nine hours--for Senator Leahy to clarify just how many terrorist attacks the collection of all Americans' calling records stopped. In the first hearing (July), government witnesses said the program stopped "54 terrorist attacks." By the third hearing (October)--and after much pressure by Senator Leahy--General Alexander corrected his statement: it turns out the program had only stopped "one, perhaps two" terror plots, one of which involved "material support." Aside from this, there are still two sets of questions from the hearings by Senator Richard Blumenthal and Senator Ron Wyden that the intelligence community has still left unanswered.

It shouldn't take three hearings over several months for a member of Congress to obtain accurate and understandable information from the Director of the NSA.

A Congressional Investigation is Needed

Congress must initiate a full-scale, targeted, investigation outside of its regular committees. Such an investigation would normally fall under Congress' intelligence or other oversight committees. But any investigation into the NSA's activities must include a review of the current Congressional oversight regime. Since the creation of the intelligence committees in 1978, there has been no external audit or examination of how the system has performed.

A review is needed when the Senate intelligence committee's own chair, Senator Dianne Feinstein, admits how extraordinary difficult it is to obtain information from the intelligence community. Members of Congress have complained that briefings are like "playing a game of 20 questions" and other members have even noted how the House intelligence committee may have neglected to pass information to members before a key vote.

Current members of Congress aren't the only ones complaining: former Vice President Walter Mondale and Senator Gary Hart--two former members of Congress who were instrumental in creating the Senate intelligence committee--have also said that the intelligence committees are not operating as they were originally intended.

Increasing Reports is a Start

So far, Congress favors increasing reporting requirements or asking for an investigation by an Inspector General (IG). Transparency bills--like bills brought by both Senator Al Franken and Representative Zoe Lofgren--are a fantastic start. But such reports won't uncover the secret law the NSA is using or the secret collection of ordinary people's information. It also won't tell us about the use of Executive Order 12333. The bills will only provide a numerical range regarding the orders the government sends, companies receive, and the number of users or accounts the orders impact.

What's worse, the Inspector General of the Intelligence Community--who reports directly to the very officials who authorized the spying--told Senators he is unable to carry out a review of the programs due to a lack of resources. And even if such an investigation were to occur, the IG is unable to even request documents without the approval of the Director of National Intelligence.

Time for a New Investigation

The NSA leaks are ushering in a new day regarding Congressional oversight of the intelligence community. And it's why Congress must dedicate the resources to a full-scale investigation by a special committee. Such a committee will allow Congress to delve into what other data the NSA may be collecting en masse  about Americans, to learn about how the surveillance laws it passed are being used, and to inform the American public--all while protecting national security. It's a tough balancing act, but Congress was able to do it in the 1970s with the Church and Pike Committees. And it should have the courage to do it again today.

Reprinted from eff.org

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