There may be times when the Intelligence Community needs to do things that are, strictly speaking, illegal and unconstitutional. It is this very necessity that makes rigorous Congressional oversight of the intelligence community so critical. To demonstrate this, I will once again pull an example from the Cold War. In 1954 DCI Allen Dulles and future DCI Richard Helms went to the Postmaster General and told him that they wanted to photocopy the front and back of envelopes being mailed to the Soviet Bloc. This became a mail opening program. The CIA did not tell anyone, not even Eisenhower, Kennedy, LBJ, or Nixon, that they were doing it. They certainly didn’t tell any members of Congress. Their reasoning was twofold. As for the Presidents, since the program was clearly illegal, keeping them in the dark reduced their legal culpability. As for the program, it was the perceived inviolability of the U.S. mail that made it effective. The CIA did not want to risk leaks or exposure to KGB espionage, by briefing Congress. As long as the Soviets thought our mail could not be opened, they continued to use it.
Now, we can certainly understand the CIA’s position and reasoning. And we can agree that they thought they were doing everything they could to keep us safe. But, the CIA’s attitude was inconsistent with American principles, was illegal, was unconstitutional, and led to abuse. The House and Senate Select Committees on Intelligence were set up to solve the problem of the tension between covert operations and the need for our intelligence agencies to operate within the law and to respect the rights of American citizens. By creating a small group of Congresspeople that must be briefed on our covert operations, we built a system where there could be oversight while minimizing the risk of those programs becoming known to the enemy.
It also created an outlet for whistleblowers. If an intelligence worker discovered an illegal or unethical activity, he did not need to run to the Washington Post. He or she could go to the intelligence committees and tell what they knew in closed session.
And this leads me to House Intelligence Chair, Peter Hoekstra’s latest revelations. Hoekstra received word, from a whistleblower, that the Bush administration had not informed him of a major covert program. Under the intelligence reform legislation of the 1970’s, that is illegal.
Mr. Hoekstra made clear on Sunday that he was particularly troubled by the failure to notify the Intelligence Committee of one particular major program.
“We can’t be briefed on every little thing that they are doing,” Mr. Hoekstra said in an interview on “Fox News Sunday.” “But in this case, there was at least one major — what I consider significant — activity that we had not been briefed on that we have now been briefed on. And I want to set the standard there, that it is not optional for this president or any president or people in the executive community not to keep the intelligence committees fully informed of what they are doing.”
Hoekstra has given a pass to the WMD issue, to Abu Ghraib, to the NSA program, to the Treasury program, to the silencing of Sibel Edmonds, and to everything else the administration has engaged in with or without the consent and knowledge of his committee. He has been a strident critic of the whistleblowers and leakers that have, in his estimation, been trying to undermine the Bush/Cheney regime. But, he sees this particular whistleblower as acting the way a whistleblower should act.
Mr. Hoekstra said, “This is actually a case where the whistle-blower process was working appropriately.”
“Some people within the intelligence community brought to my attention some programs that they believed we had not been briefed on,” he said, adding, “They were right.”
…”We need to make sure the whistle-blower process is an open door,” Mr. Hoekstra said at the hearing. Otherwise, he said, when intelligence officers see something they believe to be illegal or unwise, “they just go, ‘Well, I’ll just go to the press.’ “
This sounds right. The problem is that Hoekstra isn’t planning to do anything about this violation of the law. We have no assurances that the program will be stopped. Hoekstra seems content, now that he has been briefed, to let bygones be bygones. Criminal violations of the law go unpunished and uninvestigated. Why, we’d like to know, did the Bush administration carry out a covert operation without telling their rubber stamp Chairman on the House Intelligence Committee? How egregiously illegal must the program be?
And that is where the problem lies. If Hoekstra’s committee actually acted on information brought to it by whistleblowers, rather than sweeping it under the rug, then whistleblowers would not feel the need to go to the papers. It is the very lack of Congressional oversight that leads to potentially damaging leaks. And, even in a situation where the Bush administration can rest assured that the Congress will not investigate, they still do not fully brief Congress.
Back in the 1970’s the problem was the CIA was opening mail without telling the President. Now the problem is that the CIA is being asked to do illegal and unethical acts, and Congress doesn’t care. You want to stop leaks? Enforce the law.
