Chief counsel to committee that probed Nixon abuse of power wants similar Bush probe
Michael Roston
Published: Wednesday February 7, 2007
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Staffers to onetime committee voice mixed opinions

The chief counsel to the committee that investigated abuses of power by President Richard Nixon in the 1970s tells RAW STORY he’d like to see a similar inquiry into clandestine intelligence operations under President George W. Bush.

Frederick A.O. Schwarz, who presently works as Senior Counsel at the New York University School of Law’s Brennan Center for Social Justice, served as chief counsel to the Church Committee from 1975-1976. The committee drew its name from Senator Frank Church (D-ID) (in photo), who led the massive probe into abuses of power by US intelligence agencies.

When asked by RAW STORY in an interview last week about whether a deeper inquiry into the activities of the intelligence community akin to the work of the Church Committee would be appropriate, Schwarz said, “I think it’s a very good idea.”

“One thing that needs to be looked at is the conduct of the intelligence agencies on subjects like warrantless wiretapping and ‘rendition’ for torture,” he said. “One important issue is the actual conduct of the agencies, and the other is the ‘command and control’ questions – how were they authorized, or were they authorized? And if so, who were their bosses, the Department of Defense, or the White House?” he added.

Schwarz also believes Congress should tackle the concept of presidential power espoused by the Bush White House.

“Another thing that needs to be looked at is the theory that the Bush administration has that the president is entitled to break the law,” he said. “Because if that’s right, then much of what they've done with respect to warrantless wiretapping and torture, he's like a king, and he has the right, so you must take on that third subject to have a good investigation.”

Concerns about the government using its “awesome technology against domestic communications” through “abuses of power” led to the formation of the bipartisan Senate committee in 1975.

Over thirty years later, concerns about the Bush administration’s spying activities which include employing tactics like “warrantless wiretapping” and a signing statement giving the president power to open mail to fight terrorism, have led one Democratic Congressman to call for “dust[ing] off” the same type of vigorous oversight plan which followed President Richard Nixon's resignation. Facing probable impeachment for the Watergate scandal, Nixon resigned after the release of a “smoking gun” audio tape, in which he was heard asking his chief of staff just days after the break-in at the Democratic National Committee offices in 1972 to “call the FBI and say that we wish, for the country, don't go any further into this case, period.”

RAW STORY interviews with former Church Committee staff members reveal mixed feelings about a similar probe being conducted today. Staffers debate whether it would be appropriate to repeat “the thorough airing of Agency practices affecting American citizens” which Senator Church and Senator John Tower (R-TX), the committee's vice chairman, were able to hold in 1975.

Schwarz, however, strongly supports a sweeping congressional investigation. He addresses this legal controversy in a forthcoming book, Unchecked and Unbalanced: Presidential Power in a Time of Terror, which he co-authored.

But he acknowledged such an investigation would not be easy. Whereas the Church Committee investigated intelligence agency operations from President Nixon back to the Truman administration, any probe now would likely concentrate on President Bush’s tenure.

“Today, with the concentration on the current administration, it is harder to be done in a way that's nonpartisan,” he said. “That doesn't mean that it’s not necessary.”

Democrats have promised greater oversight and accountability in the 110th Congress, and one of its first legislative acts included the creation of a new committee to monitor the budgets of the nation’s spy agencies. The question now is: Should both houses of Congress consider the model of intensive oversight that occurred in the post-Nixon-era Church Committee?

The Church Committee

Church’s oversight panel investigated CIA-sponsored assassinations, FBI spying on the civil rights movement, the opening of mail by those agencies, NSA activities that were in contravention of the Fourth Amendment, and other operations. Its scope included the intelligence activities of all administrations since the end of World War Two.

“We are tasked, by Senate Resolution 21, to investigate ‘illegal, improper, or unethical activities’ engaged in by intelligence agencies, and to decide on the ‘need for specific legislative authority to govern operations of the National Security Agency,’” the chairman of the committee, Senator Frank Church (D-ID), said on Oct. 29, 1975.

The Committee’s 160 staff members produced 50,000 pages of documentation. Their recommendations led to a variety of reforms, including Gerald Ford’s executive order banning assassinations and the drafting of the Foreign Intelligence Surveillance Act, which established the FISA Courts that oversee spying activities – the very court that President Bush first avoided when conducting his warrantless wiretap program.

Aside from Church and Vice Chairman Tower, the other nine members of the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, which sat during 1975 and 1976, included Democratic Senators Philip Hart, Walter Mondale, Walter Huddleston, Robert Morgan, and Gary Hart, along with Republican Senators Howard Baker Jr., Barry Goldwater, Charles McCurdy Mathias Jr., and Richard Schweiker. Links to Church Committee reports can be read at the website COINTELPRO.

Congressman says ‘dust off the Church Committee’

RAW STORY contacted Schwarz to seek comment after the remarks of Rep. Adam Schiff, a California Democrat who recently said that the Church Committee's oversight work should be “dusted off.”

On Jan. 24, Schiff gave a speech on the House floor bemoaning the lack of oversight on the Bush administration’s spying activities. In the aftermath of NSA wiretapping – which President Bush agreed only under pressure to subject to the secret FISA court – Schiff sees a need for escalated oversight of the NSA and the White House’s activities.

“In rebuffing recent congressional requests for information on the current NSA program, the administration has made the argument that the NSA surveillance program is too sensitive to be shared with Congress, even to Members in the classified setting,” Schiff said.

“Congress should follow the example of the Church Committee, by vigorously examining the NSA surveillance program and determining what legislative action is necessary, ” Schiff added. Along with Rep. Jeff Flake (R-AZ), he therefore introduced H.R. 11, the NSA Oversight Act.

Some documents on the NSA program were later released to the Intelligence Committees by the Department of Justice.

Rep. Schiff expanded on his House speech in an e-mail to RAW STORY, saying, “Congress should dust off the oversight plan from some 30 years ago and follow the example of the ‘Church Committee’ which issued more than 50,000 pages of reports in what is considered the most comprehensive review of intelligence activities in the country.”

Some disagree with Church approach

Not all members of Congress agree. Rep. Pete Hoekstra, the ranking Republican on the House Intelligence Committee, argues that more oversight could complicate the intelligence community’s broader activities and undermine existing oversight.

“The Church Committee recommended the creation of the Congressional Intelligence Committees for the purposes of carrying out oversight of the nation's intelligence activities,” Hoekstra spokesman Jamal Ware said in a statement. “If changes are going to be made to intelligence oversight or appropriations, they should be made using the committees created by the Church Committee – not through creation of panels that increase the burden of congressional reporting and bureaucracy and risk confusing intelligence oversight.”

Rep. Hoekstra is not alone in thinking that a Church Committee-like investigation is not the right move.

Loch Johnson, who served as Senator Church’s staff representative on the panel, says there isn’t strong enough public outcry to justify such a vigorous investigation of the intelligence community’s activities.

Johnson, presently a Regents Professor of Political Science at the University of Georgia, stated, “The CIA was Orwellian, and when you looked at the public opinion polls of the time, people were very concerned that it had gotten out of control. We were receiving lots of mail on the subject, and it was clear something had to be done.”

“The investigations of that matter were stimulated by an issue of huge concern to the American people, and we just don't have that right now,” he added. “The public is riveted on the war in Iraq.”

Rhett Dawson, the minority counsel who worked with Republican Senators on the Church Committee and is now President and CEO of the Information Technology Industry Council, gave another reason why the investigation’s model might not be applicable in the current political climate.

“The watchwords of the intelligence community in that day were ‘plausible deniability,’” Dawson said. “Those things were not known at all, the major operations like assassinations, and Frank Church thought that many were activities that would not have taken place but for fact that there was no strong oversight. At one point, he called the CIA a rogue element.”

Dawson continued, “I don't think there's much comparison with what the Church Committee tried to do, because the particular activities now, presumably, are well known or at least known to the Intelligence Committees, and being reviewed by them.”

The former minority counsel also believed that an in-depth Church-like investigation could step on the toes of other oversight efforts in the 110th Congress.

“The Intelligence Committees in the Senate and House both get high marks,” Dawson argued. “I can't imagine that Senator (Jay) Rockefeller (D-WV) as Chairman of the Senate Select Committee on Intelligence would have a lot of enthusiasm to create a committee to duplicate what he thinks he's already doing.”

Church’s former staffer Loch Johnson agreed that the Intelligence Committees could accomplish a great deal, especially because he sees more Republican worries about intelligence activities.

“Republicans are concerned that the FISA court procedure is not working the way it is supposed to, and Senator McCain illustrates that the GOP is concerned with renditions and the secret prisons too,” he explained.

Former chief counsel Schwarz says that the current Congress’s committees could accomplish some vigorous oversight. But he also maintains that there’s a need for investigations to go deeper, and that existing committees aren’t capable of doing that.

“A good congressional investigation takes real time, it takes pushing aggressively for documents,” he said. “Single hearings to have people come in and pontificate, they’re not going to give you the real credibility that something like the Church Committee had. You need something with the staying power of a Church-type committee to have effective oversight.”