September 03, 2013

HPSCI: Promising Past, Unfortunate Present

On July 14, 1977 the House of Representative passed a resolution creating the House Permanent Select Committee on Intelligence (HPSCI).   A counterpart committee in the Senate—the Senate Select Committee on Intelligence (SSCI)—had been in existence for more than a year.

The creation of these oversight committees came out of the recommendations of two congressional investigatory panels established in 1975 – the Church Committee in the Senate and the Pike Committee in the House – both focused on allegations of illegal CIA and other intelligence and law enforcement Agency activities.  Such activities ranged from covert action programs involving assassination attempts against foreign leaders and covert attempts to subvert foreign governments to efforts by intelligence agencies to collect information on the political activities of US citizens.

HPSCI, specifically, is charged with the oversight of the United States Intelligence Community, which includes the intelligence and intelligence related activities of 17 elements of the US Government, and the Military Intelligence Program.

Flash forward almost 40 years.

In November of 2011, HPSCI's Chairman introduced the “Cyber Intelligence Sharing and Protection Act (CISPA)” to “help American businesses better protect their computer networks and intellectual property from advanced cyber attacks.” 

The purported intent of the legislation was to “allow the Federal government to provide classified cyber threat information to the private sector…” and to “empower American businesses to share anonymous cyber threat information with others in the private sector and enable the private sector to share information with the government on a purely voluntary basis, all while providing strong protections for privacy and civil liberties.”  

Importantly, the Chairman stressed that the legislation would provide “liability protection for companies that choose to protect their own networks or share threat information.”

That ominous provision aside, the Chairman took great pains to communicate that Americans need not fear for their privacy, hyping:

“The bill’s strong protections for privacy and civil liberties include:

- Narrow definitions that permit only the voluntary sharing by the private sector of a limited category of information—cyber threat information—and only for cybersecurity purposes;

- Strict restrictions on the government’s use, retention, and searching of any data voluntarily shared by the private sector;

- Permitting individuals to sue the government in federal court for violations of the bill’s privacy restrictions;

- Requiring the independent Intelligence Community Inspector General to conduct a detailed review of the government’s use of any information voluntarily shared by the private sector, and provide an unclassified report to Congress;

- A sunset for the bill’s authorities in five years, requiring Congress to carefully review the use of the authorities provided under the legislation to determine whether they should be extended or modified.

These are all interesting points, from an academic perspective.  Reality, however, is a bit more harsh.  

The oversight that the Chairman's office is charged with conducting has seemingly been perverted into cover-up: CISPA - notwithstanding the legitimate benefits that might be derived from honest interpretation and implementation - seems to have been, to some extent, an attempt to establish after-the-fact "legalization" (in part) of the illicit activities of the very intelligence Agencies HPSCI is meant to safeguard the American population against. 

In the wake of the initial Snowden allegations in June 2013, the Chairman – the man responsible for leading this key Congressional Committee charged with reining in intelligence agency abuses – barfed up an op-ed in the Detroit Free Press (still posted on his Congressional website at

Key excerpts:

As chairman of the House Intelligence Committee, it is my responsibility to ensure strict and thorough congressional oversight of the important work done by America’s intelligence agencies.

 I have been disheartened by dangerous national security leaks that have grossly distorted two vital NSA programs…Neither program allows the NSA to read e-mails or listen to phone calls of American citizens. Both programs are constitutional and do not violate any American’s Fourth Amendment rights. Both are strictly overseen by the Foreign Intelligence Surveillance Court, a federal court created in 1978 to protect the rights of American citizens in the course of foreign intelligence gathering.

- There are also several layers of checks and balances put in place around these programs within the executive branch and Congress. Both programs are overseen by lawyers and compliance auditors from the Department of Justice, the director of national intelligence and multiple independent inspectors general. Both have also been authorized by large bipartisan majorities in Congress and are regularly reviewed by the House and Senate intelligence committees.

- The first program allows the NSA to preserve a limited category of business records to help identify foreign terrorists and their plots to attack the U.S. This court-authorized program allows NSA to preserve only phone records such as the numbers dialed and the date, time and duration of calls. These records do not include the names or personal information of any American and do not include any content of calls.

- When the NSA wants to query the records, it must establish through a court-approved process that there is a reasonable suspicion a specific number is connected to a foreign terrorist. Only a limited number of analysts can obtain approval to conduct a narrow and targeted search of those numbers. If U.S. connections are found, they are passed to the FBI for further investigation. If the FBI wants to determine the identity of a phone number resulting from an NSA search, they must obtain a separate court order…”

- The second program, known as PRISM, allows the NSA to obtain a court order to access the electronic communications of suspected foreign terrorists overseas. Because much of the world’s Internet traffic flows through U.S. infrastructure, the law allows the NSA to obtain the specific communications of foreign suspects from U.S. companies with a court order. This program does not create a “back door” to any U.S. company’s server. This program cannot and does not monitor the communications of any U.S. citizens.

- All 535 members of Congress have had access to classified briefings describing the specific uses of these two programs, though not all members have chosen to attend these briefings.

Subsequent revelations and confirmations from the Intelligence Agencies themselves reveal virtually all of the observations in the Chairman's op-ed to be, seemingly, knowing and willful untruths - knowing and willful violations of the Chairman's primary commitment and responsibility to the American people.

What else has he been lying about?