US National Security, Intelligence and Democracy

From the Church Committee to the War on Terror

Russell A. Miller, Russell A. Miller

• Publisher: Routledge
• Year: 2008
• ISBN:
  9781134064434
• Edition: 1
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

This volume examines the investigation by the 1975 Senate Select Committee ( Church Committee ) into US intelligence abuses during the Cold War, and considers its lessons for the currentwar on terror. This report remains the most thorough public record of America's intelligence services, and many of the legal boundaries operating on US intellige

1 Introduction: U.S. national security, intelligence and democracy

From the Church Committee to the War on Terror

Russell A. Miller

The return of Senator Church

During the past half-century, two historic confrontations—one against worldwide communism and the other against international terrorism—have presented American policy makers with the inevitably, difficult challenge of balancing intelligence and security needs against fundamental commitments to constitutional government and human liberty.

America’s contribution to the triumph over communism was a measure of the success with which that balance could be struck; it was as much a victory of the democratic spirit as it was of intelligence ruthlessness and military strength. U.S. Senator Frank Church (Democrat from Idaho) was among those Americans who insisted upon democracy and constitutionalism even in the face of the existential, nuclear-armed Soviet threat. As Chairman of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (1975–76),¹ which came to be called the “Church Committee,” Senator Church led the first independent examination of the American intelligence community’s Cold War record. Senator Church’s determination to expose and correct intelligence agencies’ abuses of civil liberties and violations of the law resulted in the publication of 14 volumes of reports. Newsweek described the effort as the “most comprehensive and thoughtfully critical study yet made of the shadowy world of U.S. intelligence.”² More than a quarter-century later, the Church Committee’s work remains the most thorough public record of America’s intelligence services. The Foreign Intelligence Surveillance Act,³ which principally sought to prohibit warrantless government surveillance of U.S. citizens, is among the most prominent of the many legislative reforms that resulted from the Church Committee’s reform proposals.

Of greater consequence than the resulting intelligence oversight and reform, the Church Committee’s investigation stands as an historic monument to faith in constitutional governance. As a congressional body investigating the most secret realm of the Presidential empire,⁴ the Church Committee represented a stubborn commitment to the Founding Fathers’ vision of limited government as secured by checks and balances, even in the face of America’s most vexing national trials. Repeatedly, the Church Committee’s reports refer to the “fundamental principles of American constitutional government,” consisting of the commands that power be checked and balanced and that the preservation of liberty requires the restraint of law.⁵

Now, following the September 11, 2001 terrorist attacks in the United States, Senator Church is back.

The U.S. intelligence community’s devastating failure to discover and prevent the terrorists’ plot turned attention to the effectiveness of America’s intelligence apparatus.⁶ Some blamed the Church Committee for hobbling America’s spymasters with the millstone of congressional oversight. According to this line of thinking, the Church Committee was the cause of the intelligence breakdowns leading up to that fateful day in September 2001. Chris Mooney explained that

[t]he Church bashing began the day of the World Trade Center massacre on ABC, when former Secretary of State James Baker said that Church’s hearings had caused us to “unilaterally disarm in terms of our intelligence capabilities.” The allegation was soon repeated by Republican Senator Christopher “Kit” Bond of Missouri and numerous conservative commentators. The Wall Street Journal editorial page called the opening of Church’s public hearings “the moment that our nation moved from an intelligence to anti-intelligence footing.” And the spy-mongering novelist Tom Clancy attacked Church on Fox News’s O’Reilly Factor: “The CIA was gutted by people on the political left who don’t like intelligence operations,” he said. “And as a result of that, as an indirect result of that, we’ve lost 5,000 citizens this week.”⁷

Stephen F. Knott forcefully joined this chorus, arguing that the Congressional oversight resulting from the work of the Church Committee extensively damaged the CIA. “While the old CIA may have been noted for the ‘cowboy’ swagger of its personnel,” Knott explained, “the new [post-Church Committee] CIA” is unwilling to take risks and “act at times in a Machiavellian manner.”⁸ Congressional oversight, Knott complained, prevents the CIA “from acting in a shrewd and, as is sometimes necessary, ruthless manner.”⁹ Rather than rooting out the cancer of executive secrecy and lawlessness, Knott viewed the Church Committee as having maimed the American intelligence community, turning the CIA into “the functional equivalent of the Department of Agriculture.”¹⁰

These contemporary accusations, especially as regards the threat of terrorism, would not have surprised Senator Church.¹¹ He would have been disappointed, however, by the fact that they reflect an unserious examination of the Committee’s work. The Committee strongly sought to underscore the “vital” constitutional importance of intelligence activities, declaring, for example, that “intelligence agencies perform a necessary and proper function” in advancing the Constitution’s preambular commitment to promoting “domestic tranquility” and “the common defense.” The Committee was especially aware of the need for effective intelligence activities in combating terrorism.¹²

More troubling to Church, however, would be the notion that his twenty-firstcentury critics, much like those arrayed against him in the 1970s, invoke a vision of government that he passionately believed is supported neither by the text of the U.S. Constitution nor by the republican ideals to which it aspires. Whatever the U.S. Constitution stands for, Church insisted, Machiavellianism must not be one of them, not even in the hardscrabble world of intelligence and not as an expedient in responding to threats to America’s national security.

The book: bridging the Church Committee and the War on Terror

This book tackles this claim by bridging the work of the Church Committee and the contemporary debate over national security, intelligence and constitutional governance in the War on Terror. It consists of two distinct parts.

Part I: the Church Committee—then and now

The book’s first part contains the reflections of several key veterans of the Church Committee and authorities on Senator Church himself. These pieces point up several themes. First, they make clear that advocating constitutional governance, as Senator Church did, requires great courage. This is especially true in the face of real or perceived threats to American security. Insisting upon checks and balances, even with respect to intelligence operations, also threatens the entrenched and powerful interests of the national security state, even if the nation is not confronted with a clear and present national security threat. Second, the contributions to the book’s first part establish that a commitment to constitutional governance need not come at the cost of a loss of security. To the contrary, as each of the contributors to the book’s first part make clear, the respect for constitutional governance and intelligence oversight demanded by Church actually serves to strengthen America. This is true, if for no other reason, because constitutional governance and the rule of law are profoundly American. As Senator Gary Hart says in his chapter in this book (Chapter 2), “deep down, what people really respect about the United States is its Constitution and principles.” The book’s first part, by reminding us of the rarity of the Church Committee’s integrity and vision, serves as a call to courage for our own era, one that is responsive to the adage that those who ignore history are doomed to repeat it.

Senator Gary Hart’s chapter opens the first part of the book. A member of the Church Committee and now one of America’s leading scholar-statesmen on issues of national security, Hart compellingly argues that the compromises made in the War on Terror have their historical precedent in the Cold War abuses documented by the Church Committee. With the anecdotal flair of an eyewitness, he recounts the most startling of the Church Committee’s revelations and the resulting reform proposals. Senator Hart singles out two points for particular concern. First, he is bothered by the predictability of the extraconstitutional intelligence policies that proliferated, seemingly unchecked, in the Cold War era and which have returned in the reaction to the September 11, 2001 terrorist attacks. “What goes around comes around,” he concludes. “Here we are again, 30 years later, in yet another unwise war, no wiser and once again willing to sacrifice constitutional liberties in the name of security expediency.” This predictability, Hart argues, is a product of a distinct understanding of presidential authority that has never gained ascendance but that has nonetheless survived through the persistent advocacy of a handful of well-placed Americans, most prominently Vice President Richard Cheney. Second, he agonizes that compromises of American constitutional values, whatever short-term intelligence and security benefits they produce, nonetheless erode the most important national security weapon at America’s disposal, “the extraordinary power of [America’s] respected constitutional principles.” Senator Hart’s contribution poignantly engages the book’s most fundamental themes, with more than just a tone of regret for lessons still unlearned.

Frederick Schwarz was the Church Committee’s Chief Counsel. No one is better positioned than he to identify, as he does in his chapter, the broad elements of the Committee’s findings. He notes that the intelligence community long had relied on imprecise mandates, weak or permissive oversight, and patterns of secrecy and ambiguity that undermined accountability. He supports these claims with details from the Committee’s expansive reports. With Schwarz, the reader has the privilege of being led through the Committee’s massive record by the man who coordinated the investigation and assembled the vast body of evidence. But Schwarz is not content with detailing the Committee as an historical artifact. He pushes forward to outline the significant reform that resulted from the Committee’s investigation and the repeated assaults on that fragile oversight infrastructure, including the present challenge posed by a number of the policies in the War on Terror. Considering the precarious nature of the reform achieved by the Church Committee as demonstrated by the alleged abuses of the Bush administration, Schwarz turns his attention, in the second half of his contribution, to a consideration of the context and method that made the Committee’s success possible. He emphasizes that the Committee had the benefit of working without the pressures that attend an immediate or ongoing national security crisis. What is more, the Committee’s success demonstrates that “oversight should be comprehensive, non-partisan, responsible and fact based.” This, it is clear, is meant to serve as a model for the approach to be taken towards the intelligence abuses being exposed today.

Professor Loch K. Johnson was special assistant to Senator Church in his capacity as Chair of the Senate Select Committee on Intelligence. Later, Johnson was the first staff director of the House Subcommittee on Intelligence Oversight. He has gone on to become one of the nation’s leading scholars of the U.S. intelligence community. He was present for the creation of, and his chapter in this book carefully details, the intelligence oversight infrastructure that resulted from the work of the Church Committee. It is exactly this oversight that, as remarked earlier, came in for so much hostility following the September 11, 2001 terrorist attacks. That is a surprising accusation in light of Johnson’s findings that “the level of rigor displayed by intelligence overseers in Congress has fallen below the expectations of the [Church] Committee’s reformers in 1975.” Johnson’s chapter is a bracing introduction to American intelligence oversight, a story that begins, as it must, with the Church Committee’s “chilling” revelations of constitutional indifference. After mapping the resulting oversight regime, Johnson underscores the important role of human agency in its operation. Members of Congress, he demonstrates, have pursued their oversight responsibility with varying degrees of engagement and commitment.

Chapters from Professors LeRoy Ashby and Katherine Aiken round out the book’s first part. Ashby, one of Church’s biographers, and Aiken, a historian of Idaho politics, provide incredibly valuable insight into the biographical significance of Church’s leadership of the Committee. On the one hand, Ashby articulates Church’s courage and idealism:

[B]y questioning the huge expansion of executive powers and secrecy that were occurring in the name of national security, the committee struck a blow on behalf of the constitutional separation of powers. As Frank Church insisted time and again, no one—including the President—is supposed to act outside the law. Protecting the nation, Church said, should not come at the expense of the nation’s ideals, freedoms, and Constitution.

On the other hand, Aiken underscores that courage often has a cost. Aiken’s chapter confirms that Church’s dedication to constitutional governance and his leadership of the Committee came at a grave political price, concluding that “[t]here is little doubt that [Church’s] very public investigation of the United States’ intelligence community negatively impacted Church’s 1980 reelection campaign,” a battle Church ultimately lost by fewer than 4,000 votes. But both Ashby and Aiken suggest that this was a risk Church was willing to take. “Church was fully cognizant at the outset that his task in investigating United States intelligence operations was fraught with controversy and represented a potential political quagmire,” Aiken notes. “He genuinely believed that going forward with the investigation was the right thing to do, the only legitimate course of action.”

Part II: Contemporary issues of national security, intelligence and democracy

If Part I of the book provides the mandate of history, then the book’s second part makes clear that the history of the Church Committee, and its insistence on constitutional governance, is painfully relevant today. In a series of in-depth scholarly commentaries from a diverse set of researchers and advocates, the second part of the book provides a comprehensive, if not exhaustive, accounting of the questionable intelligence and security policies pursued as part of the American reaction to the September 11, 2001 terrorist attacks. The legacy of the Church Committee haunts each of these contributions like a specter.

Professor David Gray Adler, one of America’s foremost experts on presidential power and the Constitution, frames the broad concern at work in each of the chapters in the book’s second part by tackling the Bush administration’s assertions of power under a theory of the “unitary executive.” How much unaccountable and unchecked authority does the President possess? In uncompromising terms Adler asserts that any vision of executive power that vitiates the doctrines of separation of powers and checks and balances is neither constitutionally justifiable nor wise. His argument is based, in equal parts, on resort to the intention of the Constitution’s framers and general political theory. Adler recognizes, in the Bush administration’s assertion of sweeping powers under the theory of the “unitary executive,” the same threat of executive overreaching that so troubled the Church Committee. Adler also shares the Church Committee’s insistence on shared decision making in foreign and intelligence affairs. The Constitution, he concludes, demands vigilance and accountability.

Professor Richard Seamon, a prolific commentator on the USA PATRIOT Act and other national security issues, strikes a more moderate tone in his examination of the Bush administration’s warrantless domestic surveillance program. The National Security Agency’s warrantless domestic surveillance program, of course, is the clearest contemporary reprise of abuses uncovered by the Church Committee. Critiques like Adler’s, which primarily focus on the limits imposed on the executive by the Constitution’s mandated separation of powers and checks and balances, have dominated the public and legal reaction to revelations of this contemporary warrantless surveillance program. Seamon, however, turns his attention to the Fourth Amendment privacy implications of the program. He concludes that not every instance of warrantless surveillance is prohibited by the Fourth Amendment. A genuine ongoing national security emergency, for example, would justify departures from the established privacy protections of the Fourth Amendment. He cautions that this is a very narrow and limited reliance upon the theory of the “unitary executive.” This is a fine distinction Adler seems unwilling...