Empowering The House Intelligence Committee to be Smarter

How do you help Members of the House Intelligence Committee makes the best decisions about matters concerning national security? In part, it’s by making sure that they receive the best staff support possible. That’s why a bipartisan coalition of 16 organizations sent a letter Friday in support of a congressional request for high security clearances for staffers. Let me explain….

The House Permanent Select Committee on Intelligence (a.k.a. House Intelligence Committee or HPSCI) has its staff hired by the chair and ranking member of the committee. Because of the nature of intelligence committee work, public and outside experts are less able to render assistance than with other committees.

As a result, members of Congress rely more than usual on their staff to provide confidential advice and assistance — and those staff must have the highest levels of clearance to be useful. It is only with top clearances that it becomes possible to ask the probing questions of intelligence briefers and to have fully informed conversations with Members of Congress. While committee staff can be useful, personal office staff play a unique and distinct role as compared to committee staff in fulfilling this need for individualized assistance.

That is why, in part, that each Senator who serve on the Senate Select Committee on Intelligence (a.k.a. Senate Intelligence Committee or SSCI) hires a staffer who is responsible to that Senator, can obtain the highest level of clearance, and provides support concerning the work of SSCI.

Providing members of HPSCI with personal office staffers with top security clearances creates parity with the Senate and also expands the pool of staff a Member of Congress with intelligence responsibilities can rely upon.

All this can be accomplished through $125,000 in additional funding to the House Sergeant at Arms to allow personal office designees of members who serve on HPSCI to be able to undergo Top Secret Sensitive Compartmented Information Security (TS/SCI) investigations.

It’s not just us that thinks this would be useful. Eight Members of the House Intelligence Committee, coordinated by Rep. Jackie Speier, requested that appropriators make these funds available to the Sergeant at Arms.

Some may fret that providing 20-odd congressional staffers high clearance may pose security problems, but considering more than 660,000 executive branch employees have top secret clearance and more than 500,000 contractors have top secret clearance, I suspect the real danger comes from a lack of oversight, not an empowered Congress.

— Written by Daniel Schuman

Freedom of Information Bill Passes the Senate

Today the Senate passed a Freedom of Information (FOIA) bill by unanimous consent. The legislation, officially known as the FOIA Improvement Act of 2015, was shepherded through the upper chamber by its original co-sponsors — Senate Majority Whip John Cornyn (R-TX) and Judiciary Committee Chair Chuck Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT). Its passage is a tribute to the willingness of members of the Judiciary Committee to work together in a bipartisan way — and partially thanks to the fortuitous fact that the president’s nomination to the U.S. Supreme Court has not yet been sent to the Senate.

The measure now moves to the House of Representatives, which itself passed similar legislation, known as the FOIA Act, earlier this year. That measure was originally authored by then Oversight and Government Reform Committee Chair Reps. Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MD), and enjoys the strong support of current Oversight Committee Chair Jason Chaffetz (R-UT).

Continue reading →

Intelligence Oversight and the Fight Over the Speaker

1_WAIxvDWs4kxMfNgqYeqNkg — Credit: Clerk of the House of Representatives

It isn’t sexy, but you have to commend House Republicans for their focus on congressional process, particularly in the negotiations surrounding the selection of a new Speaker of the House of Representatives. Unlike House Democrats and both parties in the Senate, House Republicans publish their internal rules. And, unlike House Democrats, whose leadership, unfortunately, appears unlikely to consider changes to their rules — there is a serious conversation about “regular order” taking place on the majority side of the aisle.

Rules matter. A lot. As Rep. John Dingell famously said,

I’ll let you write the substance. You let me write the procedure, and I‘ll screw you every time.

He’s great on Twitter, too.

I’m a rules nerd. For the last six years, I have published suggestions on how the House and Senate should change their rules. Today I’m going to focus on how a small change to the Republican Conference Rules would effect congressional oversight, national security, and civil liberties. (The “Republican Conference” is the official grouping of congressional Republicans.)

Republican Conference rules govern which Republicans may serve on a particular committee. Personnel choices are policy choices, as who you put on a committee determines what it does. The process for choosing members and leadership is different for standing committees and select committees.

Standing committee members are nominated by a special committee, known as the Steering Committee; select committee members are nominated by the Speaker alone. In both instances, the members of the Republican Conference could decline to approve the nominations, but that is unlikely. Almost every committee is a standing committee, except for the Intelligence Committee and the Benghazi Committee, which are select committees.

In practice, what this means is the Speaker picks who serves on — and leads — the Intelligence Committee. By comparison, members of the Republican Conference have some influence over the composition of other committees, through the Steering Committee, although even in those circumstances the Speaker has outsized influence.

Consequently, the Intelligence Committee most closely reflects the views of the Speaker when compared to other committees. There is no compelling reason for the Speaker to play this role and many reasons why the Speaker should not. Many committees deal with secrets, including the Armed Services and Appropriations Committees. Select committees usually are temporary, but the House Intelligence Committee has existed since the 1970s. And the House Intelligence Committee is not functioning as it should.

While it would not solve all the problems with intelligence oversight, nomination of members of the House Intelligence Committee should be handled in the same way as members of other committees, to better reflect the diverse perspectives and competencies of the whole House. To do this, House Republican Conference rule 12(a) could be amended to read as follows:

The Republican Steering Committee shall recommend to the Republican Conference the Republican Members of the House Permanent Select Committee on Intelligence and the standing committees of the House of Representatives, except as otherwise provided in this rule.

The Rules of the House of Representatives place a few limitations on the pool of candidates. (See page 14, subsection x.) But there’s no reason why this cannot be handled by the Steering Committee or through some other process.

The House of Representatives cannot afford to fail in its responsibilities to oversee the intelligence community. Members of the House of Representatives should take responsibility for oversight into their own hands by making sure the House Intelligence Committee reflects their priorities and the will of the House.

— Written by Daniel Schuman

Obama, Earmarks, and Transparency

Demand Progress and Cause of Action filed a petition urging the government to enforce a Bush-era executive order to make earmarks transparent. While the House and the Senate recently prohibited the insertion of earmarks — directed spending toward a particular project — into legislative documents, members of Congress, often at the behest of special pleaders, use letters, emails, phone calls, and personal visits to pressure agency staff to make funding decisions in favor of favorite businesses or pet projects.

The executive order does not prohibit these communications, but it would drag them into the daylight. An investigation by Cause of Action, described in the petition, shows how the Obama administration allowed the order to fall into desuetude. We believe spending decisions should be made on the merits and in the sunshine.

{ Read the petition }

The executive order, should the administration choose to issue regulations through the Office of Management and Budget to enforce it, is simple. It requires departments and agencies to make available to the public all written and oral communications concerning earmarks, and all discretionary funds when the agency is pressured to give favorable treatment to an entity. It also affirms that agencies may not allocate discretionary funds in response to congressional requests unless the determination is made on merit and the request is publicly-available.

This falls in line with the administration’s early ethics-related efforts. The economic stimulus and financial bailout both contained novel provisions that added clever, new approaches to curbing undue influence. Indeed, the administration made efforts to revive the executive order, only to eventually desist.

We believe that earmark requests, no matter the form, should be transparent to the public.That means the public should see who made the request, the nature of the request, and the reasoning behind it. This sunshine should deter inappropriate special pleading and close a significant loophole whereby special interests exert undue influence.

A final note. There are a few prominent people who seem to long for the era of secret earmarks, backroom deals, and so on. They believe that a little honest graft and backroom smoke is what kept the political system running. This is nonsense. I challenge anyone to read this interview with Lyndon Johnson’s bag man, Bobby Baker, conducted by the Senate historian, and remain enamored with yesteryear trading of sex for votes, literal buying of votes with bags of unmarked bills distributed on the Senate floor, and the like.

The truth is there is plenty of room for members of Congress to have quiet conversations. There are plenty of opportunities for members of Congress to trade favors and work things out. But some activities should be beyond the pale, and others should be visible to the American people. We have a right to see how, and why, the government spends our tax dollars. This executive order will help do that.

{ Liked this? You may also like Presidential Libraries: The Billion
Dollar Cash Grab}

— Written by Daniel Schuman

Presidential Libraries: The Billion Dollar Cash Grab

President Obama intends to raise at least $800 million from private donors — with hopes for $1 billion — for his presidential library, which will include a library, museum, office space, activity space, and probably a gift shop, too. It will be twice as costly as the George W. Bush Presidential Library and Museum, with fundraising efforts almost entirely untouched by federal laws that impose limitations and transparency requirements on donations to campaigns for political office.

Historically this blind spot has proven dangerous,
with outgoing presidents concerned about raising enough money,
while still in office, to ensure their legacy.

The last three outgoing administrations ran into library fundraising-related scandals, including allegations of trading a presidential pardon for money. That is why we and a coalition of 15 organizations are urging the House and Senate to enact reform legislation, the Presidential Library Donation Reform Act.

{ Read the letters to the House and Senate}

The legislation brings potential conflicts of interest to light by providing a reliable, timely way to see donations by foreign governments, corporations, lobbyists, and wealthy benefactors. It requires fundraising organizations (e.g., the Barack Obama Foundation) to submit report quarterly to the National Archives on each person or entity that contributed more than $200; and for the Archives to publish those reports in a database within 30 days of receipt. It makes it a crime to “intentionally and willfully” submit wrong information. And once the president is no longer in office and the National Archives takes control over the library, the reporting requirements end.

To his credit, President Obama voluntarily adopted limits — “for the remainder of his term” — on donations from foreign nationals, currently registered federal lobbyists or foreign agents, and corporations that are not charitable organizations.

But the limits do not extend to corporate titans,
former lobbyists or their superiors,
and individuals with business before the government.

President Obama is voluntarily disclosing donors and donations over $200, but without indicating exactly how much was given. No governmental entity oversees the reporting to ensure it is accurate, timely, or complete, and the president can change his mind on disclosure at any time.

Generally speaking, past presidents have not voluntarily engaged in significant disclosure, although Senator Clinton mentioned her co-sponsorship of an earlier version of this legislation during a primary debatewith Barack Obama in 2007, while deferring questions on transparency of the Clinton Foundation’s finances to her husband.

Presidential libraries are not just archives,
but provide the base for a former president’s efforts
to shape his or her legacy, fund-raise,
hobnob, and remain influential.

Spearheaded by Rep. John Duncan (R-TX), the Presidential Library Donation Reform Act has been introduced every Congress since 2001, most recently winning bipartisan support from the committees of jurisdiction in the House and Senate. We urge the House and Senate to speedily take up this legislation before another presidency passes them by.

Lessons from 9/11 ← P R E V I O U S
N E X T → Save the Date: Second Congressional Hackathon

— Written by Daniel Schuman

Lessons from 9/11

Select Recommendations from the 9/11 Commission Report

On the fourteen anniversary of 9/11, we must remember not just the day, but the lessons we must — but still have failed — to learn. Here are select recommendations from the 9/11 Commission Report.

Limited, Transparent Government

The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use.

• • •

As the President determines the guidelines for information sharing among government agencies and by those agencies with the private sector, he should safeguard the privacy of individuals about whom information is shared.

• • •

Finally, to combat the secrecy and complexity we have described, the overall amounts of money being appropriated for national intelligence and to its component agencies should no longer be kept secret. Congress should pass a separate appropriations act for intelligence, defending the broad allocation of how these tens of billions of dollars have been assigned among the varieties of intelligence work.

Just Policies

The U.S. government must define what the message is, what it stands for. We should offer an example of moral leadership in the world, committed to treat people humanely, abide by the rule of law, and be generous and caring to our neighbors.

• • •

A comprehensive U.S. strategy to counter terrorism should include economic policies that encourage development, more open societies, and opportunities for people to improve the lives of their families and to enhance prospects for their children’s future.

• • •

The United States should engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists. New principles might draw upon Article 3 of the Geneva Conventions on the law of armed conflict.

System of Checks and Balances

Congressional oversight for intelligence — and counterterrorism — is now dysfunctional. Congress should address this problem.

{ Like this? You may also like Sunsetting the Politics of Terror and What Our Mass Surveillance Debate Gets Wrong}

— Written by Daniel Schuman

What Our Mass Surveillance Debate Gets Wrong

Debate is swirling in Washington about the sunset of the USA PATRIOT Act’s section 215, which the administration has twisted to support mass surveillance, but the focus of the conversation reinforces the narrative of national security hardliners. The question should not be whether to reauthorize section 215, which even its author says was never intended to allow mass surveillance. That’s a no-brainer. The question is whether to investigate and root out the pro-surveillance agenda that sprouted after 9/11 and has borne the strange fruit of mass surveillance, secret law, secret courts, and unchecked executive power.

In some ways, this is a tale of seduction and corruption. The Intelligence Community has long held out the allure of secret knowledge and quick fixes to national security problems that has entranced presidents and members of the House and Senate intelligence committees. On the other hand, they claim increased power is the only way to reduce danger to Americans. The record shows, however, that the intelligence community often cannot deliver what it promises and its actions can create the dangers policymakers seek to minimize.

These dangers have only been exacerbated by the blank check given to them by the Bush administration and endorsed by the Obama administration that allows them to operate at and beyond the edge of the law. For example, opinions issued by the Department of Justice’s Office of Legal Counsel have blessed all sorts of illegal behavior, including torture, only by twisting the law and Constitution out of shape and making sure anyone who could complain about the opinions—even Congress—was out of the loop or kept out of court. Similarly the Foreign Intelligence Surveillance Court, originally charged with deciding whether to approve wiretap warrants, created an expansive body of secret law that approved mass surveillance and sharing of personal information among members of the Intelligence Community. In a democracy, the law is not supposed to be a secret and these decisions should be up for public debate.

The greatest check on unlawful executive branch behavior, Congress, is out of the loop. Often times, the Executive branch fails to share (or selectively shares) crucial information about—or even the existence of—its activities with its Congressional overseers. Sometimes members of the Executive branch flat out lie. For its part, Congress has weakened its ability to get at the truth and its Intelligence committees largely have abdicated their oversight roles. In fact, some members of Congress who are supposed to hold the Intelligence Community to account have an odd version of Stockholm syndrome where they sympathize more with the eavesdroppers than ordinary Americans. Congress must rethink how it does oversight.

The Executive branch has even taken it upon itself to assert and interpret its Constitutional powers to preclude a check by the other branches in national security matters. Many, including a whistleblower who made his concerns public, believe Executive Order 12333 is used by the administration to engage in mass surveillance. Breathtakingly, the administration in turn says EO 12333 actually is a voluntary limit on the Executive Branch’s constitutional powers, which may be broader, and Executive Order limits can be waived at will by the president. Where does it say this? In a secret Office of Legal Counsel opinion, of course.

We have a troubling set of circumstances. Secrecy is used to buttress secrecy; the constitutional checks-and-balances have become unraveled. And yet we spend time debating how much to pack into legislation addressing section 215, the elimination of which would not even end mass surveillance. Even worse, some members of Congress, such as Senate Majority Leader Mitch McConnell, have introduced legislation to leave section 215 alone for the next half decade. We do not impugn the hard work of many members of Congress and congressional staff who have worked feverishly to fix section 215, even the national security die-hards, but the unnaturally narrow debate says volumes about the blinders Congress has placed on itself.

This is why we endorsed a letter, signed by a bipartisan array of 60 non-profit organizations, businesses, and whistleblowers, that calls for comprehensivereform. We need to know what has been done in our names. We must empower Congress to perform its oversight responsibilities and protect whistleblowers when they expose illegality. We must end secret law and open up secret courts. We must end domestic mass surveillance, no matter under what authority it takes place. These are the crucial issues. This is the debate worth having.

{ Liked this? You may also like The Grassroots and the Battle Over Encryption, Sunsetting the Politics of Torture, and Senate Torture Report: The Senate Speaks }

— Written by Daniel Schuman

How Agencies Can Improve Proactive Disclosure

Agencies should set up a process to proactively disclose information that is of interest to the public on an ongoing basis. To help prioritize, agencies should look at requests made through the Freedom of Information Act, via other request-based systems (i.e., specialized forms for a particular dataset or document), and information regularly disclosed by public affairs and congressional relations offices.

Categories of information to consider for proactive release include: commercial (business-related), current events (relevant to journalists), ethics (relevant to government watchdogs, such as lobbying, ethics waivers, etc.), agency operations, and datasets (paper versions are disclosed to the public but the underlying dataset must be FOIA’d).

On a regular basis, each agency should review its efforts to evaluate the effect of proactive disclosure and whether additional documents/datasets should be proactively disclosed.

A Few Ideas on Getting Started

1. — Review how the agency already discloses information to the public.

Agency information is made available to the public in many ways. Some examples include:

As responses to FOIA requests
As responses to specialized request forms
Responses to media inquiries (by email, telephonically, and press advisories and releases)
As letters or reports to Congress or OMB
Information the agency is trying to place with media
Information disclosed in reports (already online) that are not in machine-readable formats

There may be others ways as well. Get a sense of how the public is accessing information.

2. — Get an understanding of how each of these information request processes work and obtain a representative sample of the kinds of requests being answered.

FOIA. Obtain the FOIA logs and randomly choose a significant number of requests (say 500 or 1000). Categorize each request based on the likely purpose for which it will be used: commercial, current events, ethics, agency operations, and datasets. Within each category, figure out whether the requests overlap a common dataset or series of documents.

Responses to specialized request forms. Create a list of the specialized information request forms that an agency uses to receive requests from the public. Determine the volume of requests received, on average, each year. For each form, figure out whether the information is pulled from a particular dataset or set of documents.

Responses to media inquiries. Reach out to press office staff to see whether they keep a media log, which tracks who has called and what they’ve called about. If it is exists, review a representative sample (pick a few random days) to see whether there is any commonality to the requests. Identify and list the most frequent requests. If not, look at releases and advisories pushed out by fax or email.

Reports to Congress or OMB. Make a list of all reports to Congress or OMB. Are they already available online, but not in one central place? Are multiple years grouped together? Are they available through FOIA or published through some other means?

Information to be placed with the media. Speak with press offices to get a sense of the kind of information commonly pushed to the public. Is it available online in one central place? How is the information presented?

Information disclosed but not in machine-friendly formats. Create a list of reports available on the website. Identify whether they are only available as PDF, or are they available in other formats as well, such as csv or doc?

3. — Prioritize

Looking at the information identified above, are there kinds of information that is requested again and again? If so, is it possible to disclose the underlying dataset or series of documents that underpin these common requests? Decide based upon the number of requests and the likelihood of use by the public.

Some clues to look for:

FOIA. Is information drawn from a certain source requested again and again? If so, is it possible to make the source information available to the public? If not, is it possible to create an expedited way of requesting that information? Or to pre-process that information as if it were already the subject of a FOIA request?

Responses to specialized forms. While being sure to include items from each category of information to consider for proactive disclosure, look at the most utilized special forms and determine whether it is possible to release the underlying information all at once.

Responses to media inquiries. Are there kinds of information requested again and again from press staff? Or types of requests that can be anticipated in the news cycle? If so, work with press staff to get ahead of the curve and disclose the information that is frequently requested.

Reports to Congress or OMB. If these reports routinely become available, publish them all online in a central place on the agency website as soon as they are issued. If there are concerns about redactions under FOIA, process through FOIA immediately prior to receiving a request, so they can be released at the same time or as close as possible to when the report is issued.

Information trying to be placed with the media. Publish the information as soon as possible.

Information disclosed but not in machine-readable formats. Work with offices and technology staff to make sure information published as a PDF is also published in other (open) formats as well, such as csv and doc.

4. — Two more things

(i) Talk to external and internal stakeholders. They know where the pain points are and can advise as to what would be most useful.

(ii) Look to see if an entity is broadly republishing the information the agency has provided. For example, some non-profit organizations will request an entire dataset and make it available all at once. In turn, many thousands of people will use that information. Instead of making the organization request that data, publish it online so it is available at once to everyone.

Examples of categories of information:

Business: Hedge funds using FOIA requests to obtain nonpublic information from federal agencies
Current events: (anything relevant to journalists) E.g., licenses for crude exports to Europe.
Ethics: Personal Financial Disclosure Forms from the Office of Government Ethics (requestable one at a time). See also OIRA lobbying information (available as webpages but not dataset).
Agency Operations: Department of Justice Office of Legal Counsel Opinions. Some are disclosed on multiple webpages, but not all.
Datasets: IRS 990s (c(4) tax exempt organizations).

{ Liked this? You may also like A FOIA No-Brainer and A Checklist for Drafters of Transparency Legislation }

— Written by Daniel Schuman

Senate Torture Report: The Senate Speaks

On December 9, 2014, the Senate Intelligence Committee published a report severely criticizing CIA interrogation practices as brutal and ineffective. The committee released to the public a redacted version of the report’s executive summary — nearly 500 pages long — the culmination of seven years’ work. It includes the views of the majority of committee members, an additional statement by Senator Jay Rockefeller, and the views of dissenting committee members.

The full report is classified and runs nearly 6,700 pages. In announcing the release of the report, several senators, including the Intelligence Committee Chair, gave speeches on the Senate floor explaining their views and findings.

These speeches are a helpful, succinct introduction to what is now being called the Torture Report. Their remarks, with only minor edits and captions, are included in my new ebook, “Senate Torture Report: the Senate Speaks.”

In addition, I also include remarks made on December 10th by departing Senator Mark Udall, in which he calls for the resignation of the CIA Director and discusses flaws in congressional oversight.

(Update: the ebook is available through archive.org as ePub, PDF, full text, etc. Thanks Creeping Nounism.)

{ Liked this? You may also like The Grassroots and the Battle Over Encryption, Sunsetting the Politics of Torture, and What Our Mass Surveillance Debate Gets Wrong }

— Written by Daniel Schuman

Who Counts as a Whistleblower?

Disclosures about the National Security Administration’s (NSA) surveillance programs have prompted a discussion on whether the person who released that information, Edward Snowden, could properly be deemed a whistleblower. The word whistleblower is important because it frames how we think of him and what should become of him.

By definition, whistleblowers are people who “expose wrongdoing within an organization in the hope of stopping it.” The term may be contrasted with leakers, defined as “surreptitious informants” and carrying the connotation of self-interested or sinister motivations. There can be an overlap between the terms, best exemplified by Watergate’s deep throat, FBI Associate Director Mark Felt, who shed light on massive government wrongdoing but did so in part out of petty motivations. Continue reading “Who Counts as a Whistleblower?” →