Today's news that the Justice Department refuses to furnish the Senate judiciary committee with its internal documents on the legality of President Bush's warrantless eavesdropping program is the first sign that congressional efforts to investigate the National Security Agency program are likely to dead-end. Administration officials and intelligence officers will refuse to provide the committee with further information on the mechanics of the NSA operation, and they probably cannot be compelled to do so. There's only one way the committee could succeed in obtaining a clear picture of what the NSA was up to: subpoenaing the CEOs of major American telecommunications companies. But that's a step the senators are probably not bold enough to take.
The precedent for these inquiries—the judiciary committee begins hearings on Monday, and the intelligence committee also plans an investigation—is the famous Church Committee, which revealed Vietnam-era abuses by the NSA and CIA and set in motion a series of widespread intelligence reforms that changed the way spies did business. The Church Committee actually succeeded in gleaning volumes of useful information. It also acted as a muscular congressional check on an out-of-control executive branch. By contrast, next week's hearings look to be the historical opposite. Unlikely to emerge is any comprehensive understanding of what precisely the NSA's program involved—how targeted it was, what grounds determined who should be listened to, and how long authorization to listen to specific individuals could last. All these questions have major, possibly decisive, legal implications. Answering them would shed light on the efficacy of the warrantless eavesdropping and the privacy violations that may have resulted from it. In failing to elicit new information, Congress will merely underline its own status as a compromised body with little oversight of America's spies, and no ability whatsoever to check executive excess.
The Church Committee investigation originated much as the current inquiry has. But it was not so easily rebuffed. The committee got und erway after Seymour Hersh's front-page New YorkTimes story in December 1974 outlined a widespread CIA program to spy on civilian anti-war protesters during the Nixon years. The House and Senate each established investigative committees. The Senate's was led by Frank Church, D-Idaho, who intended to run for president the following year and embraced the national exposure and prestige of leading the charge. Before weighing in on the legality of the operations, the committee wisely sought to determine what precisely Nixon's intelligence agencies had done. Young congressional aides began knocking on doors around Washington, and in May 1975 the committee got a major break. It obtained a document known within the CIA as "the family jewels"—a ledger compiled by then CIA Director William Colby of all the legally questionable activities conducted by U.S. intelligence in recent years. It was quite a list: wiretapping journalists, administering LSD to a CIA scientist who later killed himself, attempting to assassinate Castro and other foreign leaders. It ran to 700 pages.
The family jewels contained a small reference to a CIA request asking the NSA to monitor the communications of U.S. citizens involved in the anti-war movement. A young Church Committee lawyer named Britt Snider set out to learn more about this program, which was code-named Shamrock. Improbable as it may seem today, he eventually met with a representative of the NSA, who told him all about it. It emerged that with the cooperation of the big three telecom companies—RCA Global, ITT World Communications, and Western Union—the NSA regularly obtained copies of all international telegrams coming in and out of the United States. When Snider tracked down Dr. Louis Tordella, a legendary codebreaker who had been deputy director of the NSA for 16 years, and asked him whether it was legal for the NSA to intercept the telegrams of American citizens, Tordella replied, "You'll have to ask the lawyers."
Snider's success in getting Tordella to talk highlights the Church Committee's gumshoe approach. The adversarial zeal of the investigators is in part explained by the Democrats' control of Congress during a Republican presidency. But in Watergate-era America, there was also a developing sense that the pendulum of executive secrecy had reached its limit and was due to swing hard the other way. Church's final report famously declared that "too many people have been spied upon by too many Government agencies" and laid out in elaborate detail the facts of America's domestic espionage programs. It was a triumph of investigation, and the basis for the Foreign Intelligence Surveillance Act, which is widely credited with reforming the agencies. FISA governs whether and when the NSA can spy on Americans—or at any rate, did until recently.
By contrast, next week's judiciary committee hearings are unlikely to last more than a couple of days. No list of witnesses has been announced. Russ Tice, the former NSA employee and New York Times source who has asked to testify, has been warned not to by the NSA. The judiciary committee is likely to hear from Attorney General Alberto Gonzales only the administration refrain: "If somebody from al-Qaida is calling you, we'd like to know why."
If the committee was serious about investigating warrantless eavesdropping, it would borrow a tactic from the Church Committee era and subpoena the CEOs of major telecommunications companies. In his book State of War, James Risen reveals that the NSA's eavesdropping program was conducted with cooperation from "top officials of major telecommunications companies." Which companies Risen does not reveal. But as Shane Harris and Tim Naftali have explored in Slate, executives at these companies gave the NSA direct access to the major telecommunications switches carrying American phone calls and e-mails through the country. In other words, just as the NSA operated Shamrock with the cooperation of private companies in the 1960s, it is conducting its warrantless eavesdropping program with the assistance of telecom companies today. So, why not invite the CEOs of AT&T and Verizon to the judiciary committee next week for a chat?
The ranking Democrat on the House judiciary committee, John Conyers, D-Mich., wrote to 20 telecom companies and Internet providers two weeks ago, asking about their involvement in the NSA program. He has yet to receive any responses. But if representatives of those companies were subpoenaed by the Senate committee, for public-relations and legal reasons, they would have to appear. The Electronic Frontier Foundation, a digital rights nonprofit, just launched a class-action lawsuit against AT&T, alleging that the company let the NSA access its powerful database of customer call information. A corporation can't hide from that sort of bad publicity forever, and it would look decidedly dodgy if the telecom CEOs refused to show up.
Once they showed, they'd probably be obliged to talk. The broad mantra of "executive privilege" might be raised by employees of the president in refusing to answer Congress' questions. But no such privilege appears to extend to the heads of private corporations. When a House subcommittee asked telecom CEOs to come and talk about Shamrock in 1975, they initially refused. President Ford suggested in a letter that executive privilege extended to them. The committee countered with subpoenas. It was not clear whether the CEOs would comply. But they did, recognizing that executive privilege did not extend to them, whatever the president might say.
Thus far, Senate Judiciary Chair Sen. Arlen Specter, R-Pa., has given no indication that he intends to be anywhere near as bold as the Church Committee. And without the telecom CEOs, the hearings are unlikely to produce anything but speculation about what the NSA was doing. As a result, discussion of the legality of the program will be abstruse and abstract.