Hit Job: Congress Attacks Ed Snowden, Continues Ostrich-style “Oversight”

If you’re a current or former member of the House Permanent Select Committee on Intelligence (HPSCI) or a current or former staff member of the same and you’ve decided to read this, I commend you. It will be the first step in a multi-step program you’ll need to undergo in order to come to terms with how the nearly 40 year-old institution that you are or were a part of, an institution that was originally designed to police the Intelligence Community, has instead become its chief guardian — and in so doing, enabled that same Intelligence Community to become the single biggest threat to the Constitution and the Bill of Rights that we’ve faced in the history of the Republic.

Earlier this week, HPSCI Chairman Devin Nunes released a three-page summary of a 36-page classified committee report that claims, in lurid language entirely lacking in specific substantiation, that Edward Snowden’s revelations of NSA’s surveillance activities “…caused tremendous damage to national security.” That Snowden revealed illegal warrantless surveillance — a violation of the Constitution that multiple HPSCI (and Senate Select Committee on Intelligence, SSCI) members and staff were well aware of — is to be found nowhere in this summary, and I strongly suspect nowhere in the actual 36-page document.

Neither Nunes or his predecessor, Mike Rogers of Michigan, took any action to punish anyone in the executive branch for the flagrant violation of the Fourth Amendment rights of millions of Americans that the NSA’s illegal programs entailed. Instead, Nunes and his colleagues are circling the wagons around the NSA, engaging in Donald Trump-style smears against Snowden by invoking the statement of a Russian official (a Russian parliamentarian closely aligned with Russian dictator Vladimir Putin) to claim that Snowden provided intelligence to the Russian security services. No Department of Justice official has made that claim, and the indictment against Snowden certainly does not make that claim.

Nunes and his HPSCI colleagues further state in their summary the following:

Despite Snowden’s later public claim that he would have faced retribution for voicing concerns about intelligence activities, the Committee found that laws and regulations in effect at the time of Snowden’s actions afforded him protection. The Committee routinely receives disclosures from IC contractors pursuant to the Intelligence Community Whistleblower Protection Act of 1998 (IC WPA). If Snowden had been worried about possible retaliation fior voicing concerns about NSA activities, he could have made a disclosure to the Committee. He did not.

That statement is a bald-faced lie.

It was none other than the House Permanent Select Committee on Intelligence that killed previously successful legislation that, had it still been law in 2013 when Snowden went public, would have given the NSA contractor-turned-whistleblower legal protections for making disclosures to HPSCI or SSCI. I know because I was working as senior policy advisor to then-Representative Rush Holt (D-NJ) when HPSCI (under Mike Rogers chairmanship) killed the legislation. The Government Accountability Project press release dealing with the subject lays out the chronology:

In the fiscal year 2008 NDAA, whistleblower rights enforceable through district court jury trials were enacted for all Department of Defense (DoD) contractors, including at the Defense Intelligence Agency and the National Security Agency (NSA). Contrary to predictions that contractor whistleblowers would flood the courts, 25 cases were filed from 2008 through 2012 under the DoD contractor provision, including from the intelligence community. In 2009, best practice rights were enacted for all government contract employees paid with stimulus funds, including other IC agencies like the Central Intelligence Agency.

The whistleblower shield was so successful in deterring taxpayer waste and contractor abuse that the Council of Inspectors General for Integrity and Efficiency proposed permanent expansion for all government contractors. In 2012, McCaskill introduced a whistleblower protection amendment for all government contractors, and it won bipartisan Senate approval in the fiscal year 2013 NDAA.

However, during the closing conference committee negotiations, whistleblower rights were extended only to contractors outside of the intelligence community. Preexisting rights for IC contractors were removed, despite a proven track record that the law was working as intended and did not produce any adverse impacts on national security during its five-year lifespan.

The GAP-led support letter for this important contractor safeguard can be found here.

According to GAP’s account of the backstory (which I verified with McCaskill’s staff), HPSCI staff made it clear to Senator McCaskill and her people that if she insisted on pushing to make the Intelligence Community contractor whistleblower protection provision permanent, the committee would ask for what is known in House parliamentary parlance as a “sequential referral” on the annual defense policy bill — a procedure that would’ve required the House Armed Services Committee (HASC) to allow HPSCI to remove the provision in a committee hearing, or, if HASC leadership refused to cooperate, effectively kill the bill for the year. As a result, whistleblower protections for Intelligence Community contractors were stripped from the bill.

Snowden knew all of this, as well as the history of the THINTHREAD/TRAILBLAZER program whistleblowers (brilliantly chronicled by Austrian film maker Fritz Moser and his team in “A Good American”). Those past incidents involving whistleblowers being ignored or even outed by HPSCI is precisely why he didn’t waste his time going to either committee. It was unquestionably the right call then, and it clearly would be the right call today as well.

Earlier this week, my friends over at the R Street Institute posted a video and white paper laying out the need for major reforms to the way Congress conducts oversight of the Intelligence Community. I helped draft some of the proposals, but as I told everyone involved in that process, the most important reform needed is a change in the very composition of the Congress itself — a change from an anti-Bill of Rights bipartisan majority (which is what we have now) to a pro-Bill of Rights bipartisan majority.

Even under the best of circumstances, it would be a difficult task, given the long and dishonorable history of Congress passing measures or taking other actions that have served to trash the constitutional rights of Americans (such as the Overman Committee, the Dies Committee, and of course, HUAC). Forty years after the Church Committee completed its work, that body continues to stand out as the only time Congress truly changed course, challenged, and to some limited (and as it turned out, temporary) extent, curbed Intelligence Community activities that violated the Bill of Rights. It only happened because a handful of House and Senate members — led by Senator Sam Ervin (D-NC) Senator Frank Church (D-ID) — had the integrity and moral courage to insist that mass spying be ended.

Like Diogenes looking for just one honest man, I’m still looking for the House and Senate members who will embrace the examples of Frank Church and Mike Gravel, and act accordingly. Absent such leadership, we will remain on the path to the kind of “total tyranny” that Senator Church warned would be our fate if these instruments of surveillance and control were turned inward by an unscrupulous, megalomanical chief executive with a thin-skin for criticism and a penchant for viewing those who challenged him as being less-than-human, enemies to be destroyed. It’s already happened once. It could easily happen again.