Former Church Committee chief counsel: ‘New technology adds a lot to government power’

 


Chairman Frank Church (D-Idaho), of the Senate Intelligence Committee, displays a poison dart gun Sept.17,1975 as co-Chairman John G. Tower (R-Tex.), looks at the weapon during the panel's investigation of the Central Intelligence Agency at a Washington hearing. (AP file photo)

Today, Frederick A.O. (“Fritz”) Schwarz, Jr. is chief counsel for the Brennan Center for Justice at NYU Law School. But in the 70s, Schwarz served as the chief counsel for the Church Committee -- a U.S. Senate committee chaired by Sen. Frank Church (D-Idaho) --  which investigated overreach by the intelligence community and provided close oversight of their activities following the Watergate scandal.

Schwarz recently won the 2014 Ridenhour Courage Prize, an award presented to individuals in recognition of a lifelong commitment to public interest and social justice work by the Nation Institute. In an editorial in The Nation Magazine this week, Schwarz suggested the recent revelations require the formation of a "new Church Committee" to investigate the power of intelligence agencies. The Switch spoke to Schwarz about his time on the Church Committee and the parallels between the post-Watergate era and the post-9/11 era. This interview has been lightly edited for length and clarity. 

Andrea Peterson: How did you become involved in the Church Committee? 

Frederick A.O. Schwarz Jr.: I was a 39-year-old lawyer -- and I'll come back to what happened before I was 39. But I didn't know a single senator, and out of the blue I was asked if I was interested in becoming the chief counsel of the committee. I said yes, went down and met with most of the senators, and they asked me to do the job. And so I said yes.

Before that I had gone to law school. After law school I clerked. Then went to work for the new government of Nigeria, which was then one year old or less than that, as the assistant commissioner for law revision. This was before the Peace Corp, and it was really a very exciting job. Then I came back to New York, I went to a big law firm -- Cravath, Swaine & Moore, a very established firm. I became a partner there after five or five and a half years. Then I got this call asking if I was interested in being the chief counsel to the Church Committee.

And reflecting back on your time with the committee, what do you think were your most important discoveries? 

I think we uncovered both that the intelligence agencies had done a lot of illegal and improper things that were harmful to the country. And that the executive branch -- the presidents, the attorneys general -- who were meant to be responsible for them did not do a good job of overseeing the intelligence agencies. Congress, before we came to work, had sort of operated on a "don't ask, don't tell" basis -- having said to the intelligence  agencies, "we'd rather not know what you're doing."

So it was a big breakthrough for Congress to assert itself. And it was a big breakthrough to get the Ford administration to give us the documents that we needed. On the substantive side, we uncovered all sorts of misbehavior at home and overseas. I personally thought the most serious problem was the FBI, because what the FBI was doing wrong was subverting our democracy, as compared to when the CIA was doing things wrong it was more injuring our reputation overseas. So I personally thought the FBI was the greater threat. While everything we disclosed was important, I think the single most important thing was our revelations about the FBI.

And in your commentary in The Nation, you say that you think it's now time for another Church Committee. Can you explain more? 

I think periodically you need a methodical, deep investigation of secret government. And I think it's time for another major one. That's not to say nothing has been done, but I think we need a broad investigation like the Church Committee once again. I think it's particularly important now because new technology makes government have even greater power than it always has had. I think the Snowden leaks are a good example of what the government can do with their new technological powers.

Another reason it's a good time to have another investigation is that it now would cover administrations from more than one political party. That's better than it would have been in 2009, when Obama made the decision not to have an investigation because back then it would have only covered one administration of one political party and that would have inherently been more divisive.

Going back to technological capabilities of intelligence agencies, how would you compare things now to what you investigated back in the 70s? 

We thought their technology back then was pretty great. I know that Sen. Church expressed worry about what would happen if the NSA turned its technical powers against the American people. But the new technology adds a lot to government power.

Talking specifically to the alleged situation with Sen. Dianne Feinstein's committee and the CIA...

I think it's very hard for an outsider to be able to talk about what exactly the CIA did to try to find out how the committee staff got that document. But the more fundamental point is that it's a document the CIA should have given the committee. It's relevant -- in fact, it's the subject of their inquiry. Why it may be something the CIA wishes hadn't been written, it was written. And I think the CIA should have turned that document over to the committee.

I also think that the CIA has successfully slowed down the release of the committee's report for far too long. We, the Church Committee, believed that legitimate secrets need to be protected. One agreement we would make is that when we had final drafts of our reports we would show them to the White House or whatever relevant agency, and they could then tell us, "well, you may not have thought you were revealing a particular agent's existence by a particular sentence you have, but here's why you did, and here's an easy way to fix it -- so you have the same information without having that harmful effect." I think we did a good thing by agreeing to let the White House and the agencies look at our reports.

But we certainly would not have let them stall the report as this Senate Intelligence Committee report has been stalled. It's been finished or in draft form for a year and half or something like that. The CIA gave them a 120-page response or rebuttal in June of 2013. Once that's done, the report should have come out. The committee could adjust in whatever way they thought necessary and appropriate, then put it out. But this process of allowing government agencies to prevent an inadvertent harm has turned into something that is delaying the process much too long.

What's your hope for the future of oversight when it comes to the intelligence community? 

That it be vigorous, and that it be fair. When you have committees that go on for a long time, sometimes there's a danger of complacency. But the key thing is be rigorous, but be fair. Every generation or so should have a major, nonpartisan, broad investigation of secret government.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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