The intelligence committee ‘can’t tell you what they’re not telling you.’

June 7, 2013

Here's one takeaway from the NSA revelations: Nobody really trusts the House and Senate Intelligence Committees.


In this April 21, 2009 file photo, U.S. Army Gen. Keith Alexander, director of the National Security Agency, speaks at a security convention in San Francisco. (Jeff Chiu/AP)

The chairs of both committees have aggressively defended the Obama administration. The Obama administration has repeatedly pointed to oversight from Congress. But few seem comforted. And even on the committees themselves, there was considerable dissent. The New York Times today reported on the strange, long campaigns Sens. Mark Udall and Ron Wyden mounted to bring these programs to public attention.

The problem for Udall and Wyden was they couldn't tell the American people anything about the programs they were worried about. They couldn't even tell most of their staffs. "Do you have any idea how frustrating it is to have your boss ask you to get reporters to write about something he can't tell you about?" wrote Jennifer Hoelzer, who served as Wyden's communications director. So I asked Hoelzer: How effective can the intelligence committees be if they can't tell anyone what they know? And if no one trusts the intelligence committees to be effective, is their oversight really enough?

Ezra Klein: You wrote about the experience of being asked to raise awareness and get reporters interested in a top secret program your boss couldn't describe to you. How do you carry out a task like that?

Jennifer Hoelzer: It’s a challenge! And I think it’s always the challenge with the intelligence committee and the intelligence world. Ron and his intelligence committee staffer John Dickas deserve a lot of credit. There’s so much you can’t say. And sometimes people risk not saying anything because they don’t want to violate classification. If they did, Ron would lose his seat on the committee, and John would lose his clearance, and they couldn’t conduct oversight.

In this case, I don’t have clearance, and I didn’t know what I couldn’t say. So it’s like minesweeper. You just have to ask questions to try to get the outlines of what they're not telling you. Because they can't tell you what they're not telling you. And so there are all these tricks. For instance, you can't really use adjectives.

EK: Why can't you use adjectives?

JH: You can't characterize intelligence. Adjectives characterize. So we would say something like, “there is a disconnect between what people think is illegal and what is illegal.” But you can’t just say there's this program and it's wildly illegal. That would characterize it. So it leaves people who want to conduct oversight at a disadvantage. The administration can declassify anything it wants at any time. They can declassify things and characterize them. We can’t.

EK: So how do you do it?

JH: We had to be creative. One of my favorites was during the debate over renewing the PATRIOT Act. We did this 20-minute speech on the history of intelligence programs where the government kept something secret and then it came out and blew up in their face. We had a big picture of Ollie North behind us. And the point we made was this won’t stay secret forever, and then people will lose their faith in you. We said it would be better to come out and explain it yourself. But we didn't talk about the actual program.

EK: All this would seem to make the intelligence committee very weak as an oversight vehicle. 

JH: When things are public, you in the press can conduct oversight. But can you imagine if the administration said we won’t tell you how the Affordable Care Act is working? You just have to trust us? There’d be an uproar. But the intelligence committee is one of the only bodies in government with the authority to conduct oversight over the intelligence world. And since 9/11, there’s an understandable fear that terrorist attacks happen. Nobody wants to have done anything to be responsible for that. Every time TSA says they don’t want to look for knives anymore because it slows them down, no member of Congress wants to be on the record for voting for something that might someday help someone hijack a plane. Because of that fear members of Congress often abdicate their oversight role.

The Obama administration says any member of Congress could look at these documents. Yes, the intelligence committee knew, and members could go into the intelligence committee room and read the documents. But they couldn’t bring staff, they couldn’t take notes, they couldn't consult outside legal scholars. They could only talk to the government which would, surprise, tell them it was great.

EK: How does classification -- some people would say overclassification -- fit into this? 

JH: There's a huge trend toward overclassification. The Brennan Center has done great work on this. Certain generals will now say they don’t read anything that’s not at least top secret. So the classified material is just stacking up. To give you an idea -- this is years ago, but my first internship, when I was 20 years old, was in the National Security Council's press office. I had a top secret clearance. And as an intern, I could classify my e-mails. No one trained me in it. No one was overseeing it. If I classified an e-mail as top secret, it was top secret. There’s no pressure in the system not to classify. All the pressures are to classify.

When you trivialize classification like that, when you’re using it to make your memo look more important and avoid oversight, it breeds a lack of respect for classification and the things that do need to remain secret get put in jeopardy. That’s what leads to the Bradley Mannings of the world who don’t see any problem with declassifying large amonuts of information.

If you look at everything Sen. Wyden has said over the last four years, he's never called for the program to be declassified. He called for the legal justification to be declassified Our position was it’s a misuse of the classification system to classify legal interpretations.

EK: Can anything be done about it?

JH: I should say that while I have concerns about this program, this isn’t, for me, about the program per se. I began at the Navy College. I’m pretty pro-national security. But this isn’t how a democracy works. The American people need to have a say in the laws that govern them. This is a debate we should be having now. If the administration thinks they need this program, they should’ve been showing us evidence and arguing that. But they’ve been substituting their judgment for this country's judgment. And if nothing else, when you have lots of minds debating these things, you often get better programs.

EK: Are there ways to make the intelligence committee a more effective body?

JF: A couple of things. One problem is something we see in Congress as a whole. When the Intelligence Committee started under Sen. Frank Church, it stood for something.But I worked with Ron on the intelligence committee through President Bush and Obama. And I’d say it’s less about the committee now and more about being a Democrat or a Republican. Folks would post on blogs and cheer Ron for being hard on the Bush administration, and then he'd be hard on the Obama administration for the same things, and they’d call him a traitor. What I was always most proud of working with Ron is he takes his job as a senator very seriously and always tries to conduct oversight vigorously. But you need more people to put aside their party labels and stop trying to protect their guy and conduct oversight.

The other thing is this fear with regard to national security. Nobody necessarily wants their fingerprints on anything that could ever go wrong. They may be for or against it in theory, but they don’t want their name on the record. Heaven forbid some day something happens, and someone does a Google search, and they get blamed. I don’t know what the answer is to fix that. I’d start with fixing the classification system so we can have more debates like this.

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Sarah Kliff | June 7, 2013