Congressional Oversight of Classified Programs – 40 Years after the Church Committee
The Levin Center at Wayne Law presented a half-day conference, "Congressional Oversight of Classified Programs – 40 Years after the Church Committee," on Tuesday, Oct. 20, 2015, in Washington, D.C. The conference, the first for the newly established Levin Center, reviewed the status of the Church Committee reforms of 1975 and Congress' ability to oversee classified programs. The conference consisted of three panel discussions in the Kennedy Caucus Room of the Russell Senate Office Building. Nine panelists and two moderators participated, and about 100 people attended the conference, which also was live streamed online.
This is a timely subject in light of the recent disputes between Congress and the Executive Branch over the CIA interrogation program and the National Security Agency's expansive eavesdropping on the American public.
The overall theme of the conference was the mechanics, difficulties and importance of congressional oversight of intelligence activities, in particular how to oversee covert operations, secret budgets and classified materials. Congress is charged under the Constitution with the responsibility to inform the public of the workings of its government and the issues that the government should address. To meet that responsibility Congress needs to have the facts about what actions the Executive Branch is taking and upon what basis in law the Executive Branch is acting. Getting those facts becomes particularly difficult when the programs Congress is overseeing are subject to classification. Yet the programs carried out by agencies such as the CIA can have long-lasting ramifications to the future health and well being of the country and its people.
This conference looked at one of the most successful reviews of secret or covert activities by the CIA, the Church Committee investigation, and gleaned the lessons learned from the conduct of that committee. The conference addressed the complex interaction of the oversight responsibilities of Congress with the classification of national security secrets by the Executive Branch and identify ways in which the two interests can be satisfied.
The U.S. Senate's Church Committee, convened in 1975 and led by Sen. Frank Church of Idaho, was tasked with investigating federal intelligence operations in the wake of the Watergate scandal and the revelation of spying by the CIA on anti-war activists.
8:30 a.m. – Opening and introductions by moderators
- Former U.S. Sen. Carl Levin, D-Mich., chair of the Levin Center at Wayne Law and former chairman of the Senate Armed Services Committee
- Former U.S. Sen. Richard Lugar, R-Ind., president of The Lugar Center and former chairman of the Senate Foreign Relations Committee
9 to 10:30 a.m. – Panel One: The Church Committee's Experience with Classified Information
- Moderator – Michael German, fellow, Brennan Center for Justice, Liberty and National Security Program.
- Frederick A.O. "Fritz" Schwarz Jr., chief counsel of the Brennan Center. From 1975 to 1976, Schwarz was chief counsel to the Church Committee. He recently has written the book Democracy in the Dark: The Seduction of Government Secrecy.
- Dr. Loch K. Johnson, regents professor of political science in the Department of International Affairs at the University of Georgia. Johnson was special assistant to the chair of the Senate Select Committee on Intelligence Oversight from 1975 to 1976. He also served as staff director of the House Subcommittee on Intelligence Oversight from 1977 to 1979. In 1995 and 1996, Johnson worked with the chair of the Aspin-Brown Commission on Intelligence. He is the author of the book A Season of Inquiry, which provides an inside look at the operations of the Church Committee.
- Morton Halperin, senior advisor to the Open Society Foundation. Halperin had a distinguished career in federal government, having served in the Clinton, Nixon and Johnson administrations. From 1975 to 1992, he served as the director of the Center for National Security Studies, where he was involved in the work of the Church Committee and contributed to the drafting of Senate Resolution 400.
10:30 to 10:45 a.m. – Break
10:45 a.m. to 12:15 p.m. – Panel Two: Post Church Oversight and Congress' Responsibility to Know and to Inform the Public
- Moderator – Laura K. Donohue, professor at Georgetown University Law School, director of Georgetown's Center on National Security and the Law, and director of the Center on Privacy and Technology. She is working on The Future of Foreign Intelligence (Oxford University Press, 2015), focusing on the Fourth Amendment and surveillance in a digital world. A previous book, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press, 2008) looked at the impact of American and British counterterrorist law on life, liberty, property, privacy and free speech. Her articles have examined topics including the doctrine of state secrets and Foreign Intelligence Surveillance Act, and she has held numerous fellowships related to international security.
- Eleanor J. Hill, a partner in the law firm of King Spalding. She has more than 33 years of experience handling investigations in both the public and private sector. She served as the staff director in 2002 for the bipartisan, bicameral Joint Congressional Inquiry on the September 11th Attacks. From 1995 through 1999, Hill served as inspector general to the Department of Defense. Prior to that, she served as chief counsel and staff director to the Senate Permanent Subcommittee on Investigations.
- Michael J. Glennon, professor of international law at the Fletcher School of Law and Diplomacy. Prior to teaching, he was legal counsel to the Senate Foreign Relations Committee (1977 to 1980). He was a Fulbright Distinguished Professor of International and Constitutional Law and Fellow at the Woodrow Wilson International Center for Scholars and has served as a consultant to various congressional committees, the State Department and the International Atomic Energy Agency. His latest book, National Security and Double Government, challenges the view that U.S. security policy is forged by America's visible "Madisonian institutions," the president, Congress and the courts.
- Daniel Jones, professional staff member, Senate Select Committee on Intelligence. During his nearly nine-year tenure with the committee, Jones has been responsible for the counterterrorism and counterintelligence oversight accounts and has led several of the committee's most high-profile investigations, including the committee's most-recent 6,700-page Study of the CIA's Detention and Interrogation program (aka the "Senate Torture Report"). Prior to joining the committee, Jones worked at the FBI, where he supported senior officials in their management of international operations and investigations.
- Benjamin A. Powell, a partner in the law firm of WilmerHale and co-chair of its cybersecurity, privacy and communications practice. In 2005, he was nominated by President George W. Bush and unanimously confirmed by the Senate to serve as the first general counsel of the Office of the Director of National Intelligence. He served as general counsel for the first three directors. Prior to that, he had served as special assistant to President Bush and as associate White House counsel.
12:30 to 1:30 p.m. – Lunch Panel: Achieving Fact-Based, Bipartisan Oversight of the Intelligence Community
- Sen. Levin and Sen. Lugar will discuss past experiences with oversight of the intelligence community, the oversight problems involving classified materials and what needs to be done to ensure good oversight.
Suggested reading list for conference
Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate: together with additional, supplemental, and separate views (Church Committee Report)
New York Times article on CIA by Seymour Hersh (Dec. 22, 1974)
A Season of Inquiry: The Senate Intelligence Investigation by Loch K. Johnson
Democracy in the Dark: The Seduction of Government Secrecy by Frederick A.O. "Fritz" Schwarz Jr.
Congress as a User of Intelligence by L. Britt Snider
National Security and Double Government by Michael Glennon
Committee Study on CIA Detention and Interrogation Program by Senate Intelligence Committee
Report of the Joint Inquiry into the Terrorist Attacks of September 11, 2001 by House Permanent Select Committee on Intelligence and Senate Select Committee on Intelligence
Inquiry into the Treatment of Detainees in U.S. Custody by Senate Armed Services Committee