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The U.S. Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, better known as the Church Committee after its chairman Frank Church, conducted a wide-ranging investigation of the intelligence agencies in the post-Watergate period. The 11-member investigating body studied governmental operations with respect to Intelligence activities. It published 14 reports that contain a wealth of information on the formation, operation, and abuses of U.S. intelligence agencies. The reports were published in 1975 and 1976, after which recommendations for reform were debated in Congress and in some cases enacted.
The Church Committee's reports are available here.
The Final Report Edit
|“||The Government has often undertaken the secret surveillance of citizens on the basis of their political beliefs, even when those beliefs posed no threat of violence or illegal acts. . . . The Government, operating primarily through secret informants, . . . has swept in vast amounts of information about the personal lives, views, and associations of American citizens. Investigations of groups deemed potentially dangerous — and even of groups suspected of associating with potentially dangerous organizations — have continued for decades, despite the fact that those groups did not engage in unlawful activity. . . .||”|
At the outset, the Committee stated unequivocally that espionage, sabotage, and terrorist acts "can seriously endanger" both the security of the nation and "the rights of Americans," that "carefully focused intelligence investigations can help prevent such acts," and that "properly controlled and lawful intelligence is vital to the nation's interest." At the same time, the Committee emphasized the dangers that "intelligence collection . . . may pose for a society grounded in democratic principles." Echoing former Attorney General and Supreme Court Chief Justice Harlan Fiske Stone, the Committee warned that an intelligence agency operating in secret can "become a menace to a free government . . . because it carries with it the possibility of abuses of power which are not always quickly apprehended or understood." The "critical question," the Committee explained, is "to determine how the fundamental liberties of the people can be maintained in the course of the Government's effort to protect their security."
Looking back over the preceding decades, the Committee noted that "too often . . . intelligence activities have invaded individual privacy and violated the rights of lawful assembly and political expression." This danger, the Committee observed, is inherent in the very essence of government intelligence programs, because the "natural tendency of Government is toward abuse of power" and because "men entrusted with power, even those aware of its dangers, tend, particularly when pressured, to slight liberty." Moreover, because abuse thrives on secrecy, there is a natural "tendency of intelligence activities to expand beyond their initial scope" and to "generate ever-increasing demands for new data." And to make matters worse, "once intelligence has been collected there are strong pressures to use it."
In reviewing "the overwhelming . . . excesses" of the past, the Church Committee found not only that those excesses violated the rights of Americans by invading their privacy and "undermining the democratic process," but also that their "usefulness" in "serving the legitimate goal of protecting society' was often "questionable." Those abuses, the Committee reasoned, "were due in large measure to the fact that the system of checks and balances — created in our Constitution to limit abuse of Governmental power — was seldom applied to the Intelligence Community."
The absence of checks and balances occurred both because government officials failed to exercise appropriate oversight and because intelligence agencies systematically concealed "improper activities from their superiors in the Executive branch and from the Congress. Although recognizing that "the excesses of the past do not . . . justify depriving the United States" of the capacity to "anticipate" and prevent "terrorist violence," the Committee made clear that "clear legal standards and effective oversight are necessary to ensure" that "intelligence activity does not itself undermine the democratic system it is intended to protect.
In looking to the future, the Committee was especially concerned with the impact of new and emerging technologies. The Committee expressly invoked Justice Louis Brandeis' famous dissenting opinion in Olmstead v. United States, in which the U.S. Supreme Court] held in 1928, over the objections of Justices Brandeis and Oliver Wendell Holmes, that wiretapping was not a "search" within the meaning of the Fourth Amendment. In his dissenting opinion, Justice Brandeis cautioned that, since the adoption of the Constitution, "subtler and more far-reaching means of invading privacy have become available to the government . . . [and] the progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping." The Committee observed that Brandeis' warning applied "with obvious force to the technological developments that allow NSA to monitor an enormous number of communications each year."
"Personal privacy," the Committee added, is "essential to liberty and the pursuit of happiness" and is necessary to ensure "that all our citizens may live in a free and decent society." Indeed, "when Government infringes the right of privacy, the injury spreads far beyond the particular citizens targeted to untold numbers of other Americans who may be intimidated." The Committee added that, in the words of former Attorney General and Supreme Court Justice Robert H. Jackson, without clear legal limitations, "a federal investigative agency would 'have enough on enough people' so that 'even if it does not elect to prosecute them' the Government would . . . still 'find no opposition to its policies.'" Indeed, Jackson added, “even those who are supposed to supervise [our intelligence agencies ] are likely to fear [them].'"
With this warning in mind, the Committee cautioned that, "in an era where the technological capability of Government relentlessly increases, we must be wary about the drift toward 'big brother government.'" Because "the potential for abuse is awesome," it demands "special attention to fashioning restraints which not only cure past problems but anticipate and prevent the future misuse of technology." To this end, "those within the Executive Branch and the Congress . . . must be fully informed" if they are to "exercise their responsibilities wisely." Moreover, "the American public . . . should know enough about intelligence activities to be able to apply its good sense to the underlying issues of policy and morality." "Knowledge," the Committee insisted, "is the key to control." Thus, "secrecy should no longer be allowed to shield the existence of constitutional, legal, and moral problems from the scrutiny of the three branches of government or from the American people themselves."
The Committee called for "a comprehensive legislative charter defining and controlling the intelligence activities of the Federal Government.” The Committee set forth a series of specific principles and recommendations, including the following:
- "There is no inherent constitutional authority for the President or any intelligence agency to violate the law."
- "Government action which directly infringes the rights of free speech and association must be prohibited."
- "No intelligence agency may engage" in "federal domestic security activities . . . unless authorized by statute."
- The NSA "should not monitor domestic communications, even for foreign intelligence purposes."
- To the extent the NSA inadvertently monitors the communications of Americans, it must "make every practicable effort to eliminate or minimize the extent to which the communications are intercepted, selected, or monitored."
- To the extent the NSA inadvertently monitors the communications of Americans, it should be prohibited "from disseminating such communications, or information derived therefrom, . . . unless the communication indicates evidence of hostile foreign intelligence or terrorist activity, or felonious criminal conduct, or contains a threat of death or serious bodily harm."
- "NSA should not request from any communications carrier any communication which it could not otherwise obtain pursuant to these recommendations."
- "The responsibility and authority of the Attorney General for oversight of federal domestic security activities must be clarified and general counsels and inspectors general of intelligence agencies strengthened."
- "Each year the . . . intelligence agencies . . . should be required to seek annual statutory authorization for their programs."
- Congress should establish a "scheme which will afford effective redress to people who are injured by improper federal intelligence activity."
- There should be "vigorous" congressional "oversight to review the conduct of domestic security activities through new permanent intelligence oversight committees."
- Because "American citizens should not lose their constitutional rights to be free from improper intrusion by their Government when they travel overseas," the "rights of Americans" must be protected "abroad as well as at home."
- ↑ Final Report of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, S. Rep. No. 755, 94th Cong., 2d Sess., at 5 (Apr. 29, 1976) ("Final Report").
- ↑ Id. at v, vii, 1, 3.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 4, 291-92.
- ↑ Id.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 14-15, 18, 20.
- ↑ 277 U.S. 438, 473, 478 (1928) (full-text) (Brandeis, J., dissenting).
- ↑ Id. at 473-74 (Brandeis, J. dissenting).
- ↑ Final Report at 202.
- ↑ Id.
- ↑ Id.
- ↑ Id. at 290-91, quoting Robert H. Jackson, "The Supreme Court in the American System of Government" 70-71 (1955).
- ↑ Id. at 289, 292.
- ↑ Id. at 293.
- ↑ Id. at 295-339.
- Overview section: Liberty and Security in a Changing World, at 57-63.