In light of this year's 40th anniversary of the Church Committee—legendary for exposing illegal mass domestic government surveillance during the 1960s and 1970s—the Wayne State University School of Law brought former Church Committee members together in Washington, D.C. to discuss how Congress can effectively oversee classified programs. The all-day event saw numerous experts and two key former Church Committee staffers—Fritz Swartz and Loch Johnson—unanimously call on Congress to reassert its oversight authority over intelligence programs.
We couldn't agree more. EFF—as well as a dozen former staffers of the Church Committee—has called on Congress since 2013 to regain oversight over intelligence activities by creating a Church Committee for the 21st century.
As a result of the 40th anniversary, we are releasing a report commissioned by EFF and written by the Berkeley Law School's Samuelson Law, Technology, and Public Policy Clinic detailing why a new Church Committee is needed to investigate America's foreign surveillance activities, what it would investigate, and how it would be structured.
Congress Must Investigate
The topic is ripe for investigation since lawmakers have only begun to scratch the surface of the intelligence community's spying practices with the recently passed USA Freedom Act. It's important to remember the bill only addressed one publicly known program relating to Americans' calling records. In the past two years we've also learned the Intelligence Community collects innocent users' emails, text messages, financial transactions, buddy lists, address books, and other data with laws like Section 702 of the Foreign Intelligence Surveillance Act and Executive Order 12333.
An investigation would also help inform the American public about how U.S. surveillance authorities are being implemented. It's abundantly clear the public wants an investigation: A coalition of over 100 civil liberties groups has called for an investigatory committee. A petition has reached over 500,000 signatures. And poll after poll shows that Americans—regardless of political party—are concerned about the Intelligence Community's activities. In an AP poll, nearly 60 percent of Americans said they oppose the NSA collecting data about their telephone and Internet usage.
An investigation would not only inform Congress about the Intelligence Community, but might also help alleviate foreign tensions. In October, the European Court of Justice (ECJ) decided that because the U.S. government has great legal authority to collect or compel the handover of data in corporate hands without adequate protecting individuals’ privacy and other civil liberties, U.S. companies could no longer be automatically trusted with the personal data of Europeans. The ruling pointed to the inadequacy of America's surveillance laws and America's mass and indiscriminate surveillance. Given that U.S. officials have complained that the ECJ’s decision was based on an inaccurate understanding of the facts, it should welcome an independent Congressional investigation intended to present an accurate factual description of America's intelligence practices and thus facilitate a fully informed international discussion.
A New Church Committee for the 21st Century
The report discusses why a new Church Committee is needed, what it should investigate, and how it should be structured. The report digs into the details about why Congress must investigate the intelligence community's collection of users' information.
Such a committee would investigate the NSA's collection of innocent users information, government waste, and overclassification issues related to mass spying. All three topics are necessary to understand the Intelligence Community's activities. For example, documents released by the New York Times show how $300 million dollars from the Comprehensive National Cyber Security Initiative (CNCI) was used to pay telecommunications companies to spy on consumers using their networks. The CNCI includes initiatives for "information gathering," but it’s always been presented to the public as fostering research and encouraging public awareness of cybersecurity problems—not spying on Americans' Internet traffic.
The proposal in the report provides a strong framework for designing a bipartisan investigatory committee consisting of members from both chambers with full subpoena power and the ability to report recommendations and legislation to both houses of Congress.
It's been two years since the Snowden revelations, yet many questions about America's surveillance programs are still unanswered. Congress has a public responsibility to conduct a full, public investigation into the surveillance of innocent users by U.S. intelligence agencies. We hope the report is a useful guide for Congress regarding why it must investigate America's surveillance practices, what a committee would look like, and why Congress is uniquely placed to begin an investigation.