Congress’ contentious fight over the future of the foreign surveillance law has left lawmakers accusing intelligence agencies of leaving them in the dark. Congressional staff, too, are frustrated with an inability to help their bosses make sense of complicated legislation.
Members are frozen out by intelligence agencies who don’t fully trust rank-and-file legislators with the nation’s secrets, and internal rules limit legislative staff’s access to highly classified information, lawmakers and aides told NOTUS.
“How am I supposed to advise my boss on what to do? I don’t have the information,” one senior congressional staffer said. “The most ridiculous thing is you have hundreds of thousands of people who have clearances in the executive branch … I don’t see why you can’t have House staff with clearances.”
The debate to reauthorize an expiring provision of the Foreign Intelligence Surveillance Act has exposed glaring weaknesses in how national spy agencies are held accountable. The result is that Congress often doesn’t fully understand what it is actually voting on, and most offices still lack staff with any expertise to offer help.
“A lot of people don’t understand the difference between surveilling, collecting and spying, so it’s an immensely technical enterprise,” Rep. Jim Himes, the ranking member of the House Intelligence Committee, said.
On almost every other policy issue, lawmakers have a staffer who develops expertise on the issue, engages with stakeholders and constituents and helps advise their boss on how to vote. But regarding surveillance issues, House members are largely on their own. If lawmakers want to be briefed on highly secretive intelligence programs, they must go down to a tiny secure room in the basement of the Capitol and review a pile of very technical material themselves, without any staff help. That is if the intelligence community is willing to brief them at all for fear of leaks.
“The way the oversight is conducted causes huge gaps in transparency and availability of information,” Rep. Garret Graves told NOTUS during the House’s FISA negotiations.
During the debate, the intelligence community hosted a brief to make experts available for some of the highly technical questions lawmakers might have about the intelligence field. Only lawmakers themselves, or the extremely few office staff with a Top Secret clearance for Special Compartmented Information, commonly referred to as TS/SCI, were able to attend.
“I do think that if folks have concerns, it’s incumbent upon them to show up to that,” Graves said. “That way, they can ask the hard questions. You’re in a setting where you can demand the information that you’re looking for.”
But according to Rep. Dan Crenshaw as he left the brief, “There was like, maybe 40 people that made it.”
It’s hard for members who aren’t fluent in intelligence issues to ask intelligence questions because they are deprived of knowledgeable staff who can get them up to speed on extremely technical and complicated programs. Even members of the House Intelligence Committee don’t have staffers in their own offices with TS/SCI access and must instead rely on the committee staff that report to the chairman.
“This is an extremely technical authority,” Himes said of the discussion. “Just understanding how a U.S. person’s information gets into the database is fairly hard.”
Last week, lawmakers were asked to vote on expanding the definition of electronic communication service providers, a definition that would broadly impact the intelligence community and programs like FISA — but member staffers were told that the reasons for the change were classified, according to one congressional staffer.
Daniel Schuman, a lawyer, technologist and transparency advocate who studies Congress, said that a lack of cleared staff lets leadership in the House and Senate intelligence committees set the agenda.
“Access to information is power, and [leadership wants] to maintain their information advantage,” he told NOTUS. “You get what we see now in the FISA debate which are committee leadership-driven bills.”
The Senate only recently changed a rule to allow each member’s office to have one staffer with a TS/SCI clearance. The House, by comparison, isn’t guaranteed that anyone in their office would be approved for such a clearance. It could make a simple rule change to grant House staffers more high-level clearances, but leadership in both parties has resisted for years.
This rule difference created a few awkward situations, with NOTUS being told that in at least one briefing, when a question brought the discussion to a TS/SCI clearance level, House staffers were asked to leave while many Senate staffers stayed.
Last month, with bipartisan support, Reps. Sara Jacobs and French Hill pushed forward a letter to fix this staffing problem. They were joined by Reps. Don Bacon, Elise Stefanik, Joaquin Castro and Ted Lieu. The letter pointed out that while the Senate now has some access, the House is still lagging behind.
Jacobs started this campaign last spring when she saw the cleared staffing shortage as an “unnecessary roadblock for House members seeking to legislate and conduct oversight.” While House rules do allow for each office to have two staffers with a Top Secret clearance, there are no slots for them to be augmented with the SCI designation. It forces only personnel with a “need to know” to be able to attend briefings, access documents or even just conduct a small working group.
According to former senior staffers, there are people with high-level access working for the Intelligence and Armed Services committees in both chambers that let a few more staffers into certain conversations. Even so, due to the classified environments, the technical jargon (and the lack of publicity), it’s usually only members of the Armed Services or Intelligence committees who are able to put in the time or effort to understand classified issues fully.
The intelligence community is hesitant to share too much information with Congress because it believes the legislature leaks too much information, current and former officials say. At the same time, Congress has a constitutional duty to oversee intelligence programs — and needs good information to do that.
Those against broadening security clearances argue that leaks and the sensitive nature of classified information make it too dangerous.
If the committee chair and ranking members of those panels tell their colleagues behind closed doors that the FISA Section 702 program is so important that it contributes to the majority of the items in the president’s daily brief, then “their colleagues should trust them,” a former senior congressional aide who worked on national security issues told NOTUS. The whole House does not need to be given access to highly classified information to convey that message, the official said.
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During the debate, the rank-and-file members of the Republicans’ right flank felt ill-informed or, worse, intentionally obfuscated. When the intelligence community claimed a warrant requirement would slow down the intelligence collection process, possibly endangering lives, Rep. Thomas Massie said: “They’ve never given an example. And it’s in all of these briefings. They give hypotheticals. We’ve never given an actual example.”
Rep. Chip Roy also said he hadn’t ever, in the months of negotiations over FISA, been given a percentage of the program that would impact Americans. “We don’t have the full picture of everything they’re addressing,” Roy said.
The most recent fight has pushed the frustration out into the public.
“They just say that because they probably understand it a lot better, and then they just have to use their big words to explain things,” Rep. Tim Burchett said of intelligence agencies. “They think that the rest of us are just imbeciles.”
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John T. Seward is a NOTUS reporter and an Allbritton Journalism Institute fellow. Byron Tau is a reporter at NOTUS.