In the 1970s, Congress investigated intelligence abuses. Time to do it again?

June 27, 2013

In the wake of Watergate, Democrats won large majorities in both houses of Congress in the midterm elections of 1974. One of the first items on the new Congress' agenda was to investigate the intelligence abuses of Richard Nixon and his predecessors. In the Senate, this effort was chaired by Sen. Frank Church (D-Idaho). His committee examined the actions of the FBI, CIA, NSA and other agencies between World War II and the 1970s.

Their results were stunning. Investigators learned that the NSA had been engaging in warrantless surveillance of Americans' international telegrams and had illegally opened traditional mail sent between the United States and communist countries. The CIA and FBI both spied on and harassed domestic civil rights and antiwar protesters. In one infamous incident, the FBI bugged Martin Luther King's hotel rooms, obtained evidence of infidelity and then attempted to use the tapes to blackmail King into killing himself.

Loch K. Johnson had a unique perspective on the Senate proceedings. As the committee staffer designated to assist Church, he says he spent more time with the chairman than anyone else on the staff. In 1985, he wrote a book about the experience.

Today he's a professor at the University of Georgia. We spoke by telephone  Wednesday. The transcript has been edited for length and clarity.

In a 1975 hearing, Sen. Frank Church (D-Idaho) and John Tower (R-Tex.) examine a dart gun designed by the CIA to be used in assassinations. (AP)
In a 1975 hearing, Sens. Frank Church (D-Idaho) and John Tower (R-Tex.) examine a dart gun designed by the CIA to be used in assassinations. (AP)

Timothy B. Lee: How do you evaluate the legacy of the Church Committee?

Loch Johnson: I think overall the purpose of the Church committee was to make sure the intelligence community understood that it was part of the U.S. government, that it wasn't some special entity that didn't require regulation or oversight. In a way, the CIA and other agencies were brought into the framework of checks and balances. The Church Committee led to the founding of Senate Select Committee on Intelligence (SSCI) and the House Permanent Select Committee on Intelligence (HPSCI). That made oversight as different as night and day. Before, very few hearings and minimal oversight. After the Church Committee, you had two robust committees with sizable staffs of lawyers and others. It really was a dramatic change.

The committee had the right instincts and its report was supported by Republicans and Democrats. [Committee members] John Tower (R-Tex.) and Barry Goldwater (R-Ariz.) were unhappy with Church on some things. But on the assassination report [describing the CIA's attempts to assassinate foreign leaders like Fidel Castro], Church and Tower worked like Siamese twins.

I think if Frank Church were here to talk about it, he would agree that SSCI and HPSCI have fallen short of their hopes. He hoped there would be regular scrutiny of intelligence programs. It's turned out that that's been an up and down proposition. Sometimes, after media reports on scandal or failure, [we get vigorous oversight]. Sometimes it's quite lax.

 Church Committee staffer Fritz Schwartz once expressed a fear that dedicated intelligence committees would be co-opted by the intelligence agencies. Do you think that fear has been borne out by our experience with the SSCI and HPSCI?

I don't think so. Not in the sense that was often the case in the past with some committees. [For example], I would argue that the Armed Services Committees are really deep in the pockets of the military. I think the FBI has been fairly adroit at lobbying the Judiciary to loosen oversight.

I think SSCI and HPSCI have been serious about their budget reviews, quick to react to allegations of scandal. One of the things we did was to put term limits on committee members to avoid cooptation. People are beginning to believe that was a mistake because it takes so long to become an expert. The Senate has gotten rid of that idea. The house still has it.

There are some examples of cooptation. I think it has to do with the predilection of the committee members when they come on. Some members are already so pro-CIA that they'd let them do almost anything.

I divide members engaged in oversight into four categories. One category I call the ostrich. This is the member who really doesn't pay much attention. Goldwater would be a good example when he was around. He spent most of his time on the Armed Services committee and didn't pay much attention to the CIA. The second category is the cheerleader. They have unalloyed enthusiasm. They're not critical. Then there's the skeptic, the individual who really doesn't believe much in these intelligence agencies. Sen. Daniel Patrick Moynihan, for example, called for the abolition of the CIA. Finally there's the guardian, who really is both a cheerleader and a critic. He's a cheerleader because the member realizes the American people need to be protected, but a critic because of an understanding of Madison's warning that power has a corrupting influence.


Sen. Dianne Feinstein (D-Calif.) (Alex Wong/Getty Images)

How would you classify Rep. Mike Rogers (R-Mich.) and Sen. Diane Feinstein (D-Calif.), the current chairs of the intelligence committees?

I think they're both guardians. I think they really have been dedicated to looking at these programs. I think they've been quite critical in some cases. Feinstein has been very critical of harsh interrogations. At the same time she's been quite supportive of Jim Clapper and publicly supportive of the recent NSA programs that she's revealed. I think the guardian role is an important one. If you're being critical, people say you're a skeptic. I think those two people have been able to seek a proper balance.

What about Sen. Ron Wyden (D-Ore.) and Sen. Mark Udall (D-Colo.), two of the government's more outspoken critics?

I would view them as guardians too. I think quite supportive on most things. But very critical about some other things. These categories are somewhat amorphous. I certainly wouldn't put them in the category of a cheerleader. Nor are they in the Moynihan category.

Can you talk about the effect secrecy has on intelligence operations?

I think secrecy is way over-done in the intelligence community. If you look at Moynihan's Commission on Government Secrecy in 1976, they concluded that about 85 percent of documents that are classified don't really need to be. I've seen these documents. There might be a 35-page document, and on page 18 there might be something sensitive. The classification stamp is wildly overused.

There's also game-playing. [People might say] "I'm only going to read top-secret material." Knowing that bureaucrats will label things top secret to make sure the boss will look at it.

Democracy depends on an informed citizenry. How can the people of the U.S. make informed judgments on  the intelligence community when so much information is concealed? There's the whole argument about security versus democracy and the right to know. You need to have both and a proper equilibrium. The equilibrium has tipped too far toward the secrecy side.

Do you think it's possible to hold public hearings on classified intelligence programs without damaging national security?

[The Church Committee showed that] you can hold public hearings on NSA. You just have to do it carefully. We tried to choreograph it. We thought the American people ought to know about MINARET and SHAMROCK and other NSA programs.

We sent [our report] out to the NSA director. He said, hey, you can't talk about paragraph 2 and here's why. After doing several weeks of that, we had a document we could work with in a public hearing, and agreed in advance on some questions we could ask. We understood that NSA technology is highly sensitive and perishable. American people need to know a lot more about PRISM and some of these other things than we do right now.

A prudent Congress will do the same thing the media does -- check with the executive branch to see what kind of calamity might result if the information were revealed. But finally the Congress has to make its own decision as to what hearing it's going to hold and how far to go into the information. Members of Congress are pretty sensitive about protecting good secrets. I think the history of the Church committee says committees can be careful about these matters.

Down to its last breath, the Ford Administration argued that Congress shouldn't reveal any of [the Church Committee's report on assassinations], but a majority of the committee and a majority of the Congress as indicated on the final vote on the Church Committee report decided otherwise. They thought the American people ought to realize the American government had gone too far or at least hadn't been under proper supervision.


Sen. Barry Goldwater (R-Ariz)

 A theme running through the investigation in the 1970s is that it was hard to be sure the intelligence community was telling the truth. Is that something Congress should be concerned about today?

I think it is an issue. You've got example after example of people in the [intelligence community] misleading the Congress. But I think most people in the executive branch realize that that's a very dangerous game to play. First of all, there's the problem of perjury, which is a serious matter. Then there's the problem of making the people who are funding your agency unhappy with you.

Take Barry Goldwater. He underwent a conversion about halfway through his service on SSCI. At least for a year or so he became a guardian even bordering on a skeptic at times. The reason is the director of the CIA, William Casey, mislead him on the mining of harbors in Nicaragua. Later, someone testified that in fact the CIA had mined harbors. So Casey was called up again. [Goldwater] said, "You told us we didn't mine harbors." Casey said, "We didn't mine harbors, we mined piers." When Goldwater was told that his face was beet red. Sent him into a whole different category of oversight.

Director of National Intelligence James Clapper told Sen. Ron Wyden that the NSA was not collecting any information about millions of Americans. We now know that, in fact, the NSA has been collecting the phone records of tens of millions of Americans. Do you think that will harm his standing with the Congress?

I think General Clapper has been a pretty loyal and honest individual. I think that he misspoke. I'm very skeptical myself of people in the executive branch misleading or lying to Congress. I don't think that's what Clapper is up to. He has a long history of being forthright. I got the impression that that was his low point in his relationship with Congress.

Clapper didn't follow the Richard Helms example. Helms was asked by Sen. Stuart Symington (D-Mo.) whether the U.S. was involved in public action in Chile. And Helms said no, we're not. Blatant lie. CIA was involved. Helms was asked why he lied and he couldn't say yes and he didn't want to confirm it in public. What people draw from that lesson  is that what you say is: "This is a very sensitive matter that we need to discuss in executive session."

Clapper would say, "I didn't want to say that because that confirms the data collection." I think that's the proper answer. I think Clapper is still trusted even by Wyden, who I'm sure was taken aback by the misleading comment Clapper made.

James Clapper testifies before Congress on March 12, 2013. (Susan Walsh/AP)
James Clapper testifies before Congress on March 12, 2013. (Susan Walsh/AP)

How do you compare the abuses of the 1950s and 1960s to the more recent revelations of NSA spying activity?

It's like night and day. Before the Church Committee, these agencies were engaged in lots of things that were questionable. Operation CHAOS and COINTELPRO, [surveillance of domestic protesters] disrupted the lives [of protesters] and ruined their reputations. In the case of Dr. King, to attempt to get them to commit suicide. Covert actions in Chile [working to undermine the Allende government]. All kinds of things happened when the oversight was thin.

After the Church Committee and the Rockefeller Committee [an executive branch investigation of surveillance abuses led by Vice President Nelson Rockefeller,  I think the obedience to the law and the realization that it's firmly under the law and must obey the rules of oversight has been firmly entrenched.

But you end up with torture, you end up with extraordinary rendition. NSA wiretap programs that seem excessive and not well under the guardianship of the Congress. So there's no such thing as a perfect system. The intelligence agencies are under much better supervision than they used to be.

Perfect supervision would consist of Senate Select Intelligence Committee and House Permanent Select Intelligence Committee members that were guardians. Calling for public hearings that may have to be choreographed. Greater digging into the records. More traveling out to these agencies. More traveling of members overseas.

It's appalling that these two committees hardly ever have public hearings. I think their mission is in part to educate the American people about what these agencies do. The Church Committee and [the Iran-Contra hearings of the 1980s] have shown that you can talk about these things. We have a lot more to do to bring transparency.

Do you think it's time for another congressional investigation like the Church Committee?

I think we do need a new committee to look at this. At the very front of "Season of Inquiry," there's a quote from Harry Truman saying the government needs a housekeeping every now and then.

The SSCI and HPSCI have done some great work. Oversight is incredibly better than it used to be in 1975. But these members haven't given it their full attention.

I like the idea of a hybrid commission, with some members appointed by the Congress and some by the executive. That would be very useful for the nation. It would instruct us all and give members of the committee opportunity to address these issues. In order to make it happen, you'd have to have Obama and the leaders of Congress agree on it, which is hard to imagine because Obama has said time and again he doesn't like to look back, he likes to look forward. You could have just a congressional committee. You could have one that's Senate and House together. Or maybe one each.

A majority of HSCI and SSCI think the [NSA's surveillance programs are] proper. That's a bit odd because these members have really not been fully apprised of the nature of the programs. A staff member told me most of the briefings, the staff members are not even allowed in the room. The real experts on the topic being in the room just doesn't happen. That's not a criticism of the members. That's why they need to have their staff people there.

What do you think it would take to get Congress interested in launching a new round of investigations?

Usually it takes a scandal or a failure of major proportions to so enrage the public that we get a call for more inquiry. We certainly have [a scandal] from my perspective, but most Americans haven't become sufficiently outraged. In the case of Iran-Contra, that was a huge scandal. The lack of weapons of mass destruction in Iraq was a major intelligence failure. All of those led to investigations. You've got to have some kind of evidence.

I think the skepticism in 1975 was cumulative because of the mendacity, because of some of the Vietnam war activities, and then of course Watergate. With that as a backdrop, when Seymour Hersh started reporting on the family jewels, [secret documents showing the] CIA taping phones and reading mail, that led them toward doing major inquiries.

These days, after 9/11, we are fearful of terrorism. We're fearful of Chicago going up in a mushroom cloud. I think that sense of anxiety and fear has overwhelmed arguments in favor of greater transparency and oversight. It's unfortunate.

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