By Paul Rosenzweig, The George Washington University Law School
The abuses and excesses by the American surveillance and law-enforcement communities in the years leading up to the mid-1970s prompted setting up of committees to reform the intelligence set-up. Let’s take a look and see whether we have an answer to the question once posed by the Roman satirist Juvenal: Qui custodiet ipsos custodes? (Who will guard the guards?)
Let’s begin by acknowledging the complementary role played by the courts. The leading case here is titled United States v. United States District Court, better known as the Keith case.
The Keith Case
In 1968, several leaders of the White Panther Party—a white supremacist group—were charged with bombing a CIA office in Ann Arbor, Michigan. Their phones were wiretapped by order of the US Attorney General John Mitchell, who said that no warrant was required to authorize the interception because the defendants posed a clear and present danger to the structure or existence of the government.
Judge Damon Keith, the federal district court judge who started the matter, responded that the attorney general’s rationale was insufficient, and ruled that warrantless interception and surveillance of domestic conversations was unconstitutional.
When the case reached the Supreme Court, the justices agreed with Judge Keith, establishing a precedent for the idea that a warrant was needed before electronic surveillance commenced, even if the domestic surveillance were related to national security matters.
This is a transcript from the video series The Surveillance State: Big Data, Freedom, and You. Watch it now, on Wondrium.
Systems Put in Place
The illegal activities led the House and Senate independently chartering two select committees: Long Island Congressman Otis Pike chaired the House committee, while Idaho Senator Frank Church chaired the parallel committee in the Senate. And, Vice President Nelson Rockefeller lead an internal investigative review by the executive branch.
These committees put in place a new system of oversight and control that continues, largely intact, to this day.
American Surveillance: Structures of Oversight
The Senate Resolution 400, in 1976, and House Resolution 658, in 1977, established two intelligence committees as permanent select committees:
The House Permanent Select Committee on Intelligence—commonly called HPSCI—currently has 22 members, and the Senate Select Committee on Intelligence, or SSCI, has 15.
By law, Congress must be kept fully informed of significant intelligence activities.
Through the mechanisms of congressional hearings, consideration of presidential nominations, and the authorization and appropriations process, the intelligence committees exercise day-to-day reviews of the intelligence function.
Learn more about the different types of surveillance.
The Foreign Intelligence Surveillance Act
The Congress also sought to address a gap left by the Keith decision on unauthorized spying. To fix that problem, in 1978, the Congress adopted the Foreign Intelligence Surveillance Act, or FISA.
Under FISA, the government was authorized to conduct surveillance relating to foreign intelligence matters that might also include surveillance of American civilians acting as agents of a foreign power if court authorization was obtained first.
And that authorization would be given only if the court found there were probable cause to believe that the target of the investigation was, in fact, a foreign power or an agent of a foreign power.
Also, if the target of the surveillance were a US person, there also had to be probable cause to believe that the person’s activities might involve espionage, or other similar conduct, in violation of the criminal statutes of the United States.
Foreign Intelligence Surveillance Court
At the same time, because matters under investigation would be highly classified, the Congress chose to create a special court called the Foreign Intelligence Surveillance Court, or FISC. Here, the government is able to present its evidence justifying surveillance in an ex parte manner.
Ex parte means a decision that a judge makes after hearing only one side of the case. The FISC proceedings are also conducted behind the veil of classification so that its decisions are typically not recorded or published for public consumption.
The Global Feature of the New Mechanisms
Two things are notable about these new mechanisms.
Firstly, they are pretty unique globally. Almost everywhere else in the world, intelligence collection is exclusively the province of the executive. But, in the US, we have a shared governance model.
In 1818, U.S. Congressman Henry Clay said that how the president ran his secret service was not a proper subject for inquiry in Congress. And, as recently as 2002, the Foreign Intelligence Court of Review suggested that the president had an inherent constitutional power to conduct foreign surveillance, thereby implying that congressional review might even be unconstitutional. So we are fortunate, indeed, to have the oversight system we have.
Transparency of the New Mechanisms
Secondly, these systems of congressional and judicial review take place in a delegated, or a semi-transparent, manner. Covert activities that were previously not subject to review outside of the executive branch are now subject to review, behind closed doors, by a subset of our elected congressional representatives, and, in a non-adversarial process, before federal judges, all of whom we expect to pass upon the legality and propriety of the surveillance activities being undertaken.
It bears emphasis that this is a sort of halfway house between the complete secrecy that characterized surveillance activities in the early Cold War era, and the complete transparency that some see as preferable.
Learn more about Internet surveillance.
Who Will Watch the Watchmen?
Let’s get back to where we began—the quote from Juvenal: Qui custodiet ipsos custodies? (Who will guard the guards?)
The concept of guardianship is older than Juvenal. It has its origins in an idea advanced by Socrates that to protect society we should have a group of societal guardians. Plato’s Republic proposed that the answer to the problem of guardian misconduct was the education of their souls.
More recently, as we have seen, the notion of trusting our educated platonic guardians no longer suffices. The result was the creation of a system of oversight and audit that we have been in the process of fine tuning ever since the 1970s.
Common Questions about Checks and Controls on America’s Surveillance System
The committees that were set up to keep a check on American surveillance in the 1970s were: House committee chaired by Otis Pike, Senate committee chaired by Frank Church, and Nelson Rockefeller lead an internal investigative review by the executive branch.
Under FISA, the government was authorized to conduct surveillance relating to foreign intelligence matters that might also include surveillance of American civilians acting as agents of a foreign power if court authorization was obtained first.
In 1968, US Attorney General John Mitchell ordered the wiretapping of the phones of several White Panther Party leaders. But, Judge Damon Keith ruled that warrantless interception and surveillance of domestic conversations was unconstitutional. When the case reached the Supreme Court, the justices agreed with Judge Keith.
