In 1997, former FBI Director Louis Freeh called the FBI “potentially the most dangerous agency in the country” if it is “not scrutinized carefully.” Freeh also called for more congressional oversight.
His warning is prescient. The jury is still out on how post-9/11 developments such as the Patriot Act and secret detentions of American citizens have affected civil liberties and the government’s ability to fight terrorism. However, decades of experience have already shown that abuses and incompetence fester under a blanket of excessive government secrecy.
Like Oedipus, Congress is gouging out its own eyes rendering itself blind. The intelligence reorganization being contemplated by Congress has aspects that could eviscerate public and legislative access to information. This would frustrate oversight – maiming the ability of Congress and the public to improve intelligence when needed – and open the door to abuse.
Pending intelligence reorganization bills would expand the umbrella of a troublesome exemption to the landmark Freedom of Information Act. The language in this new legislation transfers the CIA director’s statutory duty to protect CIA “sources and methods” to the national intelligence director – who will have power over all intelligence agencies. And thus, this exemption – which currently applies only to the CIA – may be applied across the entire intelligence community in one fell swoop.
Secrecy is sometimes necessary, but this blanket development is not. FOIA already contains exemptions to disclosure that intelligence agencies may use to protect legitimate national security secrets. However, proposed expansion of the intelligence “sources and methods” exemption is especially troublesome.
Why? Because intelligence “sources and methods” are interpreted to mean whatever the CIA director says they are. There is not much room for judicial review of these requests for information from the CIA. It is questionable whether the CIA should have such unrestrained power since it is prone to abuse. It is another and even more egregious matter to allow it to expand across a vast swath of the federal bureaucracy.
Unlike the foreign-oriented CIA, many of the other agencies within the intelligence community affect the civil liberties and rights of Americans. For example, domestic agencies such as the Department of Homeland Security and the FBI would be placed under the authority of the national intelligence director and thus subject to the expanded FOIA exemption.
Many of these domestic enforcement agencies have been plagued by embarrassing blunders and failures in recent years, underscoring the need for strengthened rather than weakened oversight and transparency. For example, a Senate Judiciary Report in 2002 stated, “The FBI’s critical and growing responsibilities make it all the more necessary to confront the serious weaknesses in the bureau’s management and operations that have come to light in recent years (referring to mistakes from Waco to Wen Ho Lee).”
The intelligence reorganization effort was sparked by the release of the 9/11 Commission Report and by the concerns of 9/11 victim families. The 9/11 Report includes some discussion which should guide policy-makers regarding the relationship between secrecy, disclosure, congressional oversight and the effectiveness of the intelligence community.
According to the report, the Cold War culture of secrecy that still pervades the federal government has impaired the nation’s ability to effectively fight terrorism. Officials such as Colin Powell have said the same.
Though not explicitly a recommendation, the report notes that secrecy should be reduced as much as responsibly possible to allow the Congress, the media and the public to provide oversight:
“Secrecy, while necessary, can also harm oversight. The (congressional) intelligence committees cannot take advantage of democracy’s best oversight mechanism: public disclosure. This makes them significantly different from other congressional oversight committees, which are often spurred into action by the work of investigative journalists and watchdog organizations.”
Ironically, intelligence legislation being considered in the name of the 9/11 Commission Report would lead to a massive rollback in FOIA and a harmful increase in secrecy. However, unlike the tale of Oedipus, intelligence reform does not have to end in tragedy. Congress still has time to correct the mistake.
NICK SCHWELLENBACH is a fellow at the Project On Government Oversight, a watchdog group that promotes open and accountable government.