The Republican takeover of the Senate after the midterm elections threatens to stall attempts to reform the nation’s surveillance laws and avoid transparency about the CIA’s controversial interrogation program, experts and civil liberties campaigners believe.
The changeover could further weaken what some say is already lax oversight of the nation’s intelligence activities, especially on the Senate Select Committee on Intelligence (SSCI).
“It's hard to imagine the intelligence committees getting worse, but it looks like they're going to,” said Trevor Timm, executive director of the Freedom of the Press Foundation.
In January, Richard Burr, R-N.C., a staunch defense and surveillance hawk, will take over the committee's chair from Dianne Feinstein, D-Calif. At the same time, one of the intelligence community’s most outspoken voices, Mark Udall, D-Colo., will leave the committee after losing re-election last month. That looming deadline has already forced the committee’s hand over a long-awaited report on the Central Intelligence Agency's so-called enhanced interrogation program, released on Tuesday.
For President Barack Obama, a less aggressive Senate Intelligence Committee could be the midterm elections’ silver lining, some experts say. Criticism of George W. Bush–era national security policies, some of which continued under Obama, have dogged the president over the past year, pitting libertarian Republicans and progressive Democrats against the White House.
But while the new Senate Intelligence Committee could give Obama fewer headaches on the release of sensitive documents and information, many advocates are concerned about what it will mean for reviving stalled NSA reforms and getting more transparency on CIA abuses.
The new committee
The SSCI oversees the U.S. intelligence community — 17 government agencies, including the CIA, the National Security Agency, and the Office of the Director of National Intelligence. Its members are often among the only members of the Senate briefed on sensitive intelligence programs. At other times, only the committee’s leadership is briefed. That makes the position Burr is stepping into especially important.
“I personally don’t believe that anything that goes on in the Intelligence Committee should ever be discussed publicly,” he said in March, after Feinstein accused the CIA of breaching SSCI computers to gain information on the committee’s now released report about CIA interrogation programs. “If I had my way, with the exception of nominees, there would never be a public intelligence hearing.”
Burr’s comment drew a lot of attention, but it does not represent a dramatic shift for the secretive committee. Under Feinstein’s leadership, the SSCI held only two open hearings each in 2013 and 2014, excluding nomination proceedings. But Feinstein has been willing to go to the press over issues like the CIA hacking scandal. Burr, on the other hand, has a reputation for staying out of the headlines.
He is also known as a national security hawk, coming out strongly against the release of the CIA torture report and against the USA Freedom Act, which would have reformed some of the mass surveillance programs revealed by former NSA contractor Edward Snowden.
“I think that Burr will be very competent,” said independent journalist Marcy Wheeler, formerly of The Intercept. “But that said, he very much favors some of the more way-out-there things that the intelligence community does. He doesn't want rule of law imposed on the intelligence community.”
The committee will get four new Republican members and one new Democratic member come January, after Saxby Chambliss, R-Ga.; Tom Coburn, R-Okla.; and John Rockefeller, D-W.Va., retire. But Udall’s loss may be felt the most. He has often joined forces with Ron Wyden, D-Ore., and Martin Heinrich, D-N.M., to criticize the intelligence community and inform the public about possible abuses.
Udall and Wyden even dropped occasional hints about the breadth and depth of classified NSA surveillance programs. For example, when the White House confirmed a Washington Post report that NSA employees violate privacy rules thousands of times per year, the senators released a joint statement saying the confirmation was “just the tip of a larger iceberg.” Those kinds of oblique disclosures made Udall a hero for civil libertarians.
“There aren't many of them,” said Katherine Hawkins, national security fellow at Open the Government, “and when any of them is lost, it is a huge loss.”
Burr’s office did not respond to multiple requests for comment. A representative for Udall said that he was not available to speak on the record.
CIA torture report
Many observers have wondered if Feinstein rushed to release the executive summary of the committee’s report on CIA torture before she stepped down as chair and Udall left the Senate. But she has not requested release of the full 6,700-page report. That’s unlikely to happen while Burr chairs the committee. However, observers who spoke with Al Jazeera raised the possibility of a committee member reading blacked-out portions of the executive summary — or even the entire document — into the congressional record or releasing a separate guide to the redacted pseudonyms.
“If pseudonyms for CIA agents’ names are blacked out, they can map out on the Senate floor or in a subcommittee exactly which people corresponded to which actions, so we can potentially hold people more accountable,” suggested Timm, who has publicly called for Udall to read the full report into the congressional record.
It is also possible that Udall or another member of the committee could push for greater disclosure by submitting briefs in support of two ongoing lawsuits — one brought by the American Civil Liberties Union and the other by journalist Jason Leopold — that could challenge some of the redactions in the executive summary under the Freedom of Information Act.
“If they can back up what they're saying with some action in this court case, I think it would really be a huge benefit for transparency,” said attorney Jeffrey Light, who is representing Leopold. “They are definitely in a unique position and, I think, would be very persuasive, whatever they said to the court in terms of why things should be publicly released.”
While Feinstein and Burr may disagree vehemently on the torture report, both have defended the mass surveillance programs revealed by Snowden.
In one of those programs, the NSA collects metadata on millions of Americans’ telephone calls every day — what numbers they call, which numbers call them, when their calls are made. Under others, the NSA taps into massive fiber optic cables that carry much of the world’s Internet and telephone traffic. The agency may search this data without a warrant as long as it collects it outside the United States, despite the fact that the cables carry data belonging to U.S. citizens.
Civil libertarians have been strongly critical of Feinstein for her defense of these programs and of the NSA in general.
“There is a huge gulf between [Feinstein] and Burr on the torture issue. There's less of a gulf on the surveillance issue,” Hawkins explained. “But there are some real differences. She tends to at least get annoyed when the committee isn't told something.”
A bill that would have reformed the phone records program and other aspects of NSA surveillance — though not the warrantless search loophole described above — failed a procedural vote in the Senate on Nov. 18, killing surveillance reform for the rest of the legislative session. It will be harder to revive next year, with Burr heading the SSCI, Udall out and Republicans in control of both the House and the Senate.
However, while the House and Senate intelligence committees oversee the NSA, laws around digital surveillance and privacy typically originate in the judiciary committees. Next year, Charles Grassley, R-Iowa, will take over the chair of the Senate Judiciary Committee from Patrick Leahy, D-Vt., who introduced the failed USA Freedom Act this year. Grassley has been much more open to the idea of NSA reform than Burr.
“I think both [judiciary] chairs — Sen. Grassley, who will be the chair of the Judiciary Committee, and Rep. [Bob] Goodlatte [R-Va.] — have both said that a priority is NSA reform,” said Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation. “At the minimum, it's going to have to get done because three provisions of the Patriot Act expire in June.”
One of those provisions is Section 215, which the executive branch claims gives the FBI and the NSA the legal authority to collect Americans’ telephone records without a warrant. Congress reauthorized Section 215 in 2011 without a large public debate. But that may not be possible next year, in the wake of the Snowden revelations.
“There’s come a time, right now, when we need to review the expanded powers that we gave the government after Sept. 11 and review how those powers are being enacted,” said Jaycox, “and act on what we find.”