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The government’s top intelligence lawyers on Wednesday renewed assurances that Congress is adequately monitoring U.S. surveillance programs. But it’s suddenly an awkward argument for the Obama administration, since the head of the Senate Intelligence Committee publicly accused the CIA of illegally monitoring its investigators as they carried out their oversight duties.
Since disclosures about the National Security Agency’s surveillance programs, including the collection of phone records and emails of millions of U.S. citizens, the administration has said they were approved and overseen by all three branches of the U.S. government.
The congressional intelligence committees are intended to keep the government’s secret activities in check. Those lawmakers are privy to classified details, and Americans rely on them to ensure that the intelligence community follows the law, that the intelligence collection doesn’t eviscerate civil liberties, and that the programs are effective in preventing threats to the U.S.
“We’ve set the balance between public disclosure and the need for secrecy by empowering the congressional intelligence committees,” Robert Litt, general counsel of the office of the director of national intelligence, said Wednesday. Litt was speaking to a privacy oversight panel that has been reviewing some of the more controversial spy programs revealed last year.
But that balance is suspect amid complaints that the executive branch interferes with Congress. Sen. Dianne Feinstein, D-Calif., the chair of the Senate Intelligence Committee and a longtime supporter of the NSA surveillance programs, has accused the government of this type of interference.
Feinstein said the CIA interfered with and then tried to intimidate a congressional investigation into the agency’s possible use of torture as it probed suspected terrorists after the Sept. 11 attacks.
“This is kind of a raw example of how things can go wrong in congressional oversight,” said David M. Barrett, a Villanova University professor who has studied the history of Congress and the intelligence community. “Congressional oversight of intelligence is going to be imperfect. It always is.”
Some lawmakers have said the allegations, if true, have constitutional implications by preventing Congress from carrying out its oversight duties — the same duties the Obama administration points to when it justifies the legality of its intelligence programs.
When details of the NSA programs were disclosed last year by former NSA systems analyst Edward Snowden, the Obama administration and other supporters said the programs were key to preventing terrorism. But justifying the effectiveness of a secret program proved difficult, because details are classified.
“How can anybody except you people do that?” a member of the Privacy and Civil Liberties Oversight Board, Patricia Wald, asked the government.
The Obama administration’s answer: Congress.
“I think the public record now indicates there is a fairly robust exchange between the executive branch and the legislative branch on a variety of programs. And so I think that’s where traditionally the evaluation has occurred,” NSA general counsel Rajesh De said.
Privacy advocates have been critical of the congressional oversight of the NSA programs, raising concerns that lawmakers are too close to the administration, hindering objective and effective oversight of the secret programs.
“Even when Congress tries to do some oversight, they’re thwarted by the administration,” said Michelle Richardson of the American Civil Liberties Union. “I don’t think the public has faith in congressional oversight anymore.”
The former chief counsel for the Church Committee, the special Senate panel created in 1975 that preceded today’s Senate and House intelligence oversight committees, urged Congress this week to appoint a special panel to review the intelligence activities of the CIA and NSA.
“There is a crisis of public confidence,” F.A.O. Schwarz Jr. and more than a dozen former congressional aides wrote in a letter. “Misleading statements by agency officials to Congress, the courts and the public have undermined public trust in the intelligence community and in the capacity for the branches of government to provide meaningful oversight.”
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