EFF Outlines Three Illusory “Investigations” Of The NSA Spying That Will Never Succeed

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This article, written by policy analyst Mark M. Jaycox, was originally published on August 23, 2013 by the Electronic Frontier Foundation.

Since the revelations of confirmed National Security Agency spying in June, three different “investigations” have been announced. One by the Privacy and Civil Liberties Oversight Board (PCLOB), another by the Director of National Intelligence, Gen. James Clapper, and the third by the Senate Intelligence Committee, formally called the Senate Select Committee on Intelligence (SSCI).

All three investigations are insufficient, because they are unable to find out the full details needed to stop the government’s abuse of Section 215 of the PATRIOT Act and Section 702 of the Foreign Intelligence Surveillance Act. The PCLOB can only request—not require—documents from the NSA and must rely on its goodwill, while the investigation led by Gen. Clapper is led by a man who not only lied to Congress, but also oversees the spying. And the Senate Intelligence Committee—which was originally designed to effectively oversee the intelligence community—has failed time and time again. What’s needed is a new, independent, Congressional committee to fully delve into the spying.

The PCLOB: Powerless to Obtain Documents

The PCLOB was created after a recommendation from the 9/11 Commission to ensure civil liberties and privacy were included in the government’s surveillance and spying policies and practices.

But it languished. From 2008 until May of this year, the board was without a Chair and unable to hire staff or perform any work. It was only after the June revelations that the President asked the board to begin an investigation into the unconstituional NSA spying. Yet even with the full board constituted, it is unable to fulfill its mission as it has no choice but to base its analysis on a steady diet of carefully crafted statements from the intelligence community.

As we explained, the board must rely on the goodwill of the NSA’s director, Gen. Keith Alexander, and Gen. Clapper—two men who have repeatedly said the NSA doesn’t collect information on Americans.

In order to conduct a full investigation, the PCLOB will need access to all relevant NSA, FBI, and DOJ files. But the PCLOB is unable to compel testimony or documents because Congress did not give it the same powers as a Congressional committee or independent agency. This is a major problem. If the NSA won’t hand over documents to Congress, then it will certainly not give them to the PCLOB.

The Clapper Investigation: Overseen by a Man Accused of Lying to Congress

The second investigation was announced by President Obama in a Friday afternoon news conference. The President called for the creation of an “independent” task force with “outside experts” to make sure “there absolutely is no abuse in terms of how these surveillance technologies are used.” Less than two days later, the White House followed up with a press release announcing the task force would be led by Gen. Clapper and would also report to him. What’s even worse: the task force was not tasked with looking at any abuse. It was told to focus on how to “protect our national security and advance our foreign policy.” And just this week, ABC News reported the task force will be full of thorough Washington insiders–not “outside experts.” For instance, one has advocated the Department of Homeland Security be allowed to scan all Internet traffic going in and out of the US. And another, while a noted legal scholar on regulatory issues, has written a paper about government campaigns to infiltrate online groups and activists. In one good act, the White House selected Peter Swire to be on the task force. Swire is a professor at Georgia Tech and has served as the White House’s first ever Chief Privacy Officer. Recently, he signed an amicus brief in a case against the NSA spying by the Electronic Privacy Information Center arguing that the NSA’s telephony metadata program is illegal under Section 215 of the PATRIOT Act. Despite this, and at the end of a day, a task force led by General Clapper full of insiders,—and not directed to look at the extensive abuse—will never get at the bottom of the unconstitutional spying.

The Senate Intelligence Committee Has Already Failed

The last “investigation” occurring is a “review” led by the Senate Intelligence Committee overseeing the intelligence community. But time and time again the committee has failed at providing any semblance of oversight. First, the chair and ranking member of the committee, Senators Dianne Feinstein (CA) and Saxby Chambliss (GA), respectively, are stalwart defenders of the NSA and its spying activities. They have both justified the spying, brushed aside any complaints, and denied any ideas of abuse by the NSA.

Besides defending the intelligence community, the committee leadership have utterly failed in oversight—the reason why the Senate Intelligence Committee was originally created by the Church Committee. As was revealed last week, Senator Feinstein was not shown or even told about the thousands of violations of the spying programs in NSA audits of the programs. This is in direct contradiction to her statements louting the “robust” oversight of the Intelligence Committee. Lastly, the committee is prone to secrets and hiding behind closed doors: this year, the Senate Intelligence Committee has met publicly only twice. What’s clear is that the Intelligence Committee has been unable to carry out its oversight role and fresh eyes are needed to protect the American people from the abuses of the NSA.

A New Church Committee

All three of these investigations are destined to fail. What’s needed is a new, special, investigatory committee to look into the abuses of by the NSA, its use of spying powers, its legal justifications, and why the intelligence committees were unable to rein in the spying. In short, we need a contemporary Church Committee. It’s time for Congress to reassert its oversight capacity. The American public must be provided more information about the NSA’s unconstitutional actions and the NSA must be held accountable. Tell your Congressmen now to join the effort.

Electronic Frontier Foundation

From the Internet to the iPod, technologies are transforming our society and empowering us as speakers, citizens, creators, and consumers. When our freedoms in the networked world come under attack, the Electronic Frontier Foundation (EFF) is the first line of defense. EFF broke new ground when it was founded in 1990—well before the Internet was on most people's radar—and continues to confront cutting-edge issues defending free speech, privacy, innovation, and consumer rights today. From the beginning, EFF has championed the public interest in every critical battle affecting digital rights. https://www.eff.org/

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