Legislative Changes to the Foreign Intelligence Surveillance Act

Editor's Note: The following testimony was given by Benjamin Wittes on Thursday, September 26 2013 at the U.S. Senate Select Committee on Intelligence's public hearing on FISA, NSA's call records

Thank you, Chairman Feinstein, Vice Chairman Chambliss, and members of the committee for inviting me to present my views on reform of the Foreign Intelligence Surveillance Act (FISA).[1] I am a Senior Fellow in Governance Studies at the Brookings Institution. I co-founded and am Editor in Chief of Lawfare, a website devoted to sober and serious discussion of “Hard National Security Choices.” I am the author or editor of several books on subjects related to law and national security: Detention and Denial: The Case for Candor After Guantánamo (2011), Law and the Long War: The Future of Justice in the Age of Terror (2008), and Legislating the War on Terror: An Agenda for Reform (2009). The views I am expressing here are my own.

In his press conference of August 9, President Obama said with respect to collection under FISA that he believes “there are steps we can take to give the American people additional confidence that there are additional safeguards against abuse. For instance, we can take steps to put in place greater oversight, greater transparency and constraints on the use of this authority” (emphasis added).[2] I would like today to describe what I see as the major opportunities that now exist for—as the President put it—greater transparency, enhanced oversight, and additional constraint on intelligence collection under the FISA in the wake of the unauthorized disclosures this summer by Edward Snowden and the material declassified by the Executive Branch in response.

As preliminary matter, however, it is important to emphasize and clarify the stakes in the current discussion when we speak of transparency. Transparency is an extremely important value in a democratic society. The shock many people in the public now feel at NSA’s collection programs to a considerable degree flows from the lack of transparency with which those programs developed over a long period of time. This lack of transparency in NSA programs prevented the government from garnering sustained public confidence, as these programs developed, though it generally followed the law and the guidance of both the courts and this body. In our society, transparency and legitimacy go hand in hand.

Transparency, however, is not as simple a value with respect to intelligence collection as it is in other areas of government. Indeed, normally, with respect to covert intelligence gathering programs, we regard transparency as an evil—that is, fundamentally incompatible with operational security in intelligence gathering, just as it is with respect to troop movements and military planning. Some things have to be secret, and for those things, transparency is not a virtue, and sunlight is not a disinfectant. In those areas, we have traditionally sought accountability by other means.

In the wake of Watergate and the intelligence abuses unearthed in the 1970s, Congress enacted a series of reforms to the oversight and accountability system for intelligence operations, and transparency as such was not really a part of it. Rather, this system, of which both the FISA court apparatus and the congressional intelligence committees were parts, was designed to create accountability without creating transparency. That is, the goal was to enable the intelligence community to continue to operate in secret, as it must to be effective. The task of oversight, instead of taking place by means of transparency, was delegated to institutions within the normally-transparent Congress and the normally-transparent judiciary that could operate with sufficient secrecy so as not to impair the community’s operational effectiveness. It is a system that presumes that oversight would not be transparent to the public, nor even transparent to the broader institutions of the judiciary or Congress.

At its deepest level, the controversy over the Snowden leaks, the attendant anxiety over the non-public oversight mechanisms that provide accountability for these intelligence programs, and the calls for greater transparency for the FISA system reflect a loss of faith in the continued vitality of this post-Watergate system of intelligence oversight. When we speak of increasing transparency, we must decide as a threshold matter whether we mean increased transparency within the context of a system that presumes secrecy or whether we simply no longer believe in the system of delegated oversight at all. And if we have lost faith in that system, what oversight system might we imagine to replace it? Put another way, is there an oversight system that might enable effective intelligence collection but do so in a more transparent fashion?...

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[1] Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended in scattered titles of U.S.C.).

[2] Barack Obama, News Conference at the White House (Aug. 9, 2013) (transcript available at http://www.whitehouse.gov/the-press-office/2013/08/09/remarks-president-press-conference).

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