All in the Gang: How More Oversight Could Have Prevented Illegal Spying on Americans

(Originally posted on Daily Kos.)

In the wake of a veto threat (PDF) from the Obama administration, the intelligence authorization bill could be in jeopardy, all over some revisions to the "Gang of Eight" system.

The "Gang of Eight" is a group of members of Congress with a pretty sweet name that includes the leaders, both Democrat and Republican, of the Senate and House, as well as the chairmen and ranking members of the House and Senate Intelligence Committees. The "gang" is briefed on covert intelligence matters by the administration when the president "determines it is essential to limit access" to classified or national security information in "extraordinary circumstances." The "gang" is also sworn to secrecy to not disclose this information to anyone, even other members of Congress.

For more context, go here.

In honor of this peculiar threat, we decided to do a short series to highlight a few situations that could have benefitted from more, no matter how limited, oversight.

Let's kick this series off with a look back at the Bush administration's warrantless wiretapping program, the secret program that authorized the National Security Agency to wiretap Americans without a warrant, in blatant violation of federal statute, not to mention the Fourth Amendment. The Gang of Eight was brought into the loop about the wiretapping program in 2001 (PDF), and many of the eight walked away with misgivings about the program and, likely, more questions than answers. Sen. Jay Rockefeller (D-W.V.) famously wrote the vice president a letter, sealed it, and locked it in a drawer since he was held to the Gang of Eight's code of silence.

Members who are selected to sit on our congressional intelligence committees have the knowledge, background and, in some cases, expertise to understand and challenge various aspects of our intelligence activities and strategy. Also bear in mind that these intelligence committees regularly hold closed and classified hearings that even members' staff are prohibited from discussing details about.

Imagine if Sen. Rockefeller or any of his fellow gang members could have consulted with their colleagues on the intelligence committees about the warrantless wiretapping program. Had Sen. Rockefeller, or any other member of the gang, been able to do so, who knows how much more information Congress could have pried from the Bush administration. Even a closed and classified hearing is one more ray of sunlight into government secrecy than a mere Gang of Eight briefing.

It wasn't until December 2005 that the public learned about the secret wiretapping program. Legal challenges were mounted, but while these issues progressed through the courts, Congress passed the FISA Amendments Act (FAA), fundamentally altering Americans' Fourth Amendment rights. The FAA not only essentially legalized President Bush’s warrantless spying program, but it also gave the NSA new and virtually unlimited power to conduct warrantless and suspicionless dragnet monitoring of Americans' international telephone calls and emails. With this expansion of spy powers, it's even more crucial that more intelligence committee members are briefed on the goings-on at our nation's national security and intelligence agencies.

The FAA also notoriously granted immunity to the telecom companies that participated in that spying, which prevents judicial review of whether the telecoms acted illegally (hence the recent dismissal of Hepting v. AT&T ). Without judicial review, the responsibility lies even more heavily on Congress to maintain vigorous oversight.

Tomorrow we'll be arguing before the 2nd Circuit Court of Appeals for the reinstatement of our lawsuit challenging the wiretapping provisions of the FAA. We brought this lawsuit one hour after then-President Bush signed the FAA into law. The district court dismissed the case last summer, on the grounds that the plaintiffs — who include journalists, defense lawyers and human rights workers who rely on confidential communications to perform their jobs — did not have the right to challenge the new surveillance law because they could not prove with certainty that their own communications had been monitored.

As a candidate, President Obama argued for more sunlight on government secrecy under his predecessor. It would be a shame for him to use his first veto to simply draw more curtains.