A partner, not a combatant: the U.S. Congress, intelligence reform, and civil liberties after Vietnam

Abstract

ABSTRACT In the aftermath of 11 September 2001, scholars and commentators concerned about civil liberties looked back to the 1970s with an air of nostalgia. Back then, they argued, Congress exposed and constrained executive abuses of civil liberties, most notably through the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the ‘Church Committee’) and the 1978 Foreign Intelligence Surveillance Act (FISA); whereas, since 9/11, Congress has largely accepted a variety of constitutionally dubious activities as part of the ‘War on Terror.’ This article argues that these accounts get the history wrong. Drawing on the Church Committee’s hearings and reports, internal executive branch communications, and the legislative history of FISA, it makes three core claims. First, the Church Committee was more valuable as a source of historical documentation rather than real-time exposure. Second, executive officials took crucial steps towards intelligence reform before the Church Committee was established. Third, the two legislative fruits of the Church Committee – FISA and the creation of permanent intelligence committees in Congress – were forged in a cooperative, rather than adversarial interbranch environment. Thus, the post-Vietnam Congress is best described as a partner, rather than a combatant, in the process of intelligence reform.