WASHINGTON – Outspoken members of the Senate intelligence committee have said frequently that they wanted to warn the public about the sweeping collection by the National Security Agency (NSA) of telephone records, but that the program's highly classified nature prevented them from making public reference to the programs.
That, however, is not the full story. Buried in the pages of Senate Resolution 400, which established the Senate Select Committee on Intelligence in 1976, is a provision that allows them to try. Across those nearly 40 years, it's never been used.
The committee's disuse of the provision, critics say, underscores a problem with congressional oversight: Congress has proved unwilling to openly question intelligence agencies' claims that something must remain secret.
"Clearly, there are some secrets that the government should protect. So it's serious business," said former Democratic U.S. Rep. Lee Hamilton, a former chairman of the House intelligence committee who helped lead the government's investigation of the Sept. 11 attacks. "But Congress has been, I think, far too deferential to the president in letting him control the classification system."
The irony of that deference has been on display for the past two months as Congress debates whether the NSA's collection of domestic telephone metadata goes beyond what Congress intended when it passed the USA Patriot Act after the 2001 attacks: The debate became possible only because a former NSA contractor, Edward Snowden, who now faces criminal charges, leaked a secret order from the Foreign Intelligence Surveillance Court authorizing the program.
The panel's lack of muscle isn't limited to the NSA collection program. Last year, the committee approved a 6,000-page investigation into the CIA's so-called harsh interrogation program, which included waterboarding, secret prisons and allegations of torture.
The report cost $40 million and had taken years to complete. Yet despite being completed in December, not a single page of the report has been released.
The last time a legislator attempted to have a congressionally commissioned report declassified, the committee itself stood in the way.
Then-U.S. Sen. Bob Graham, D-Fla., raised the issue in July 2003, when he pressed the panel to declassify portions of its inquiry into the Sept. 11 terrorist attacks, which the Bush administration wanted to keep classified. Graham, chairman of the intelligence committee from 2001 to January 2003, wrote to the panel asking that portions of the report, which he'd helped oversee while it was being compiled, be made public.
Graham said this month that he'd made the request when he'd realized how much of the report would remain classified That hadn't been his idea as the investigation was underway.
According to a letter Graham received in September of the same year, his request was denied without a committee vote. Then-Chairman Sen. Pat Roberts, R-Kan., and the senior Democrat on the committee, Sen. Jay Rockefeller of West Virginia, cited hearings with key intelligence officials to justify keeping the report classified.
Graham said the response showed that even in the case of congressionally commissioned reports, the intelligence committee still yielded to executive agencies. He said he was disappointed at the Senate's unwillingness to declassify its own work, even after so much time had passed.
