And now, with some of those abusive powers facing a June 1,
2015 expiration date, Congress faces another moment of truth: Will it
act decisively to end unconstitutional executive branch overreach, as it
did a generation ago?
One of the most haunting and compelling witnesses at those initial
Watergate hearings was former White House Counsel John Dean. In his
testimony on June 25, 1973, Dean recounted for the committee how he told
President Nixon that the Watergate burglary and subsequent cover up were
"a cancer on the Presidency" that threatened to destroy Nixon himself
unless all involved came clean immediately. The months of public
hearings that followed and the damning revelations about Nixon’s role in
the break in and cover up culminated in Congress moving to excise the
cancer Dean described through the impeachment process, which led to
The documents smuggled out of the National Security Agency (NSA) by
Snowden sparked the first real public debate about government
surveillance powers employed in the post-9/11 era. But in contrast to
Congress’s aggressive and forceful reaction to the Watergate era
revelations of executive branch criminality and overreach, the
Congressional response to Snowden’s revelations of government
surveillance abuse has been dangerously anemic. And in the case of these
surveillance abuses, we have a cancer not simply on one institution of
government, but on the Constitution itself.
Compare the level of effort Congress expended investigating Watergate
and the other surveillance-related scandals of the 1970s with that
expended to date on Snowden’s revelations. In the Watergate era,
Congress set up entire special committees with literally dozens of staff
to investigate not only the Nixon White House but the entire U.S.
intelligence community, the latter through the select committee chaired
by then-Senator Frank Church of Idaho (i.e., the Church Committee).
Those investigations lasted years and included dozens of publicly
When the House Judiciary Committee considered the USA Freedom Act in May
2015—one of the few bills introduced in response to Snowden’s
revelations—committee chairman Rep. Bob Goodlatte of Virginia claimed
the committee had conducted "aggressive" oversight of the issue through
a total of three hearings.
As ProPublica noted,
Snowden exposed literally dozens of NSA programs and activities that
have a direct impact on the constitutional rights of Americans living at
home or abroad. The House Judiciary Committee’s three hearings did not
even scratch the surface of those programs.
The Senate Judiciary Committee under then-chairman Patrick Leahy of
Vermont conducted a worthwhile examination of government surveillance
programs in March 2013. It stands out for its singular moment in which
Senator Ron Wyden caught Director of National Intelligence James Clapper
in a falsehood about
the scope of government surveillance against Americans. Snowden’s
revelations helped highlight just how disingenuous Clapper and other
U.S. intelligence community officials had been on the issue, not just
with Congress but with the FISA
court as well.
Yet none of those revelations moved the Senate to create a select
committee to investigate the full scope of post-9/11 surveillance
programs, and the Senate Intelligence Committee has been far more a
defender of these programs than an overseer of them. The House
Intelligence Committee’s public record on this issue is also dismal,
with only a single
public hearing in the months after Snowden’s revelations that
discussed almost purely cosmetic changes to U.S. surveillance
Indeed, when reform-minded House members not on the House Intelligence
Committee have attempted to get information on these programs, they have
been blocked from
doing so—including in periods leading up to PATRIOT Act reauthorization
votes. House reformers have also been stymied in their efforts to rein
in or even end dubious surveillance activities, largely through the
efforts of the House GOP leadership to restrict the
terms and scope of the surveillance reform debate.
The House has seen fit to create a select committee to investigate the
death of U.S. Ambassador to Libya Chris Stevens—a singular, tragic event
already investigated by the State Department and the House Armed
Services Committee. However, it has refused to create such a select
committee to investigate Snowden’s revelations, despite their magnitude
and direct impact on the rights of Americans and the threat NSA’s
actions pose for American technology companies. That’s a far cry from
how the Watergate and Church Committees went about their business.
In the introduction to the Watergate Committee’s final report, the
authors noted the critical role the committee’s open hearings had played
in educating the public about the issues at stake:
Perhaps proof of the impact of the committee’s hearings is found in
the unprecedented public response to the firing of Special
Prosecutor Cox on October 20, 1973. On that weekend alone, a half
million telegrams came into the Congress. Hundreds of thousands of
telegrams flowed in during the following days. The overwhelming
sentiment of these telegrams was in opposition to the President’s
actions. It is doubtful that public sentiment would have been so
aroused by the President’s action had the public not been sensitized
to the issues involved through the committee’s hearings.
The failure of existing committees to properly probe Snowden’s
revelations, the active efforts by previous House Intelligence Committee
leadership to impede inquiries by individual House members, and the
efforts of House and Senate leaders to truncate any meaningful debate
over these surveillance powers—all of these actions make it appear that
Congressional leaders are engaged in a process designed to conceal the
U.S. intelligence community’s domestic spying transgressions rather than
educate the public on them and their implications for our democracy.
And following Senator Rand Paul’s 11-hour filibuster against attempts to
extend the PATRIOT Act for five more years, we have more evidence of
abuse of PATRIOT Act powers.
On May 21, 2015, the day after Paul’s filibuster, the Department of
Justice finally released a partially declassified version of the Sec.
215 PATRIOT Act compliance
report covering the period from 2007 to 2009. That report found that
the Federal Bureau of Investigation (FBI) violated the PATRIOT Act Sec.
215’s privacy safeguard requirements for seven years. It also found that
the Sec. 215 authority was used aggressively by the FBI to acquire huge
volumes of information on U.S. citizens not the subject of any
Section 215 authority is not limited to requesting information
related to the known subjects of specific underlying investigations.
The authority is also used in investigations of groups comprised of
unknown members and to obtain information in bulk concerning persons
who are not the subjects of or associated with any FBI
The government is vacuuming up the communications of you, your family,
your neighbors, your coworkers. No probable cause and no connection to
terrorists or foreign intelligence services required. And this is the
surveillance dragnet law Congress is considering renewing.
As important as the debate over the Sec. 215 program is, it involves
only one of many government surveillance programs that will continue
after the current debate is over—and without Congress having taken the
time to actually determine how many such programs even exist, much less
whether they have violated Americans’ rights or even been operationally
effective. Meanwhile, the cancer on our Constitution grows.
Patrick G. Eddington is a policy analyst in Homeland Security and Civil
Liberties at the Cato Institute, and an assistant professor in the
Security Studies Program at Georgetown University.