Public confidence in the National Security Agency and the efficacy of the oversight system in which it operates is at a low. Ultimately, the NSA needs the support of the public to succeed. It cannot accomplish its mission without the cooperation of the private sector and, like all government agencies, it depends on Congress for funding and legal authority. Without public consensus regarding limits on the NSA’s activities, it is more likely that those activities will be challenged by Congress and in court.
Several institutional reforms have been suggested in an effort to boost public support for the agency’s data-collection systems, including creating an advocate for the public within the framework of the Foreign Intelligence Surveillance Court and requiring public disclosure of its opinions. But one important option has yet to be proposed: creating an independent inspector general’s office at the NSA, comparable to the office that was created within the CIA in 1989.
As staff members of the Senate Select Committee on Intelligence, we were deeply involved in writing the legislation that made independent the Central Intelligence Agency’s inspector general. We saw how the law made a difference.
Not only was the inspector general’s office viewed differently after the law was passed, but the office itself was different. It decided which of the CIA’s activities would be investigated, inspected or audited without waiting for direction or approval from agency management. Employees of the IG’s office no longer had to worry about the potential effect on their careers if their findings and conclusions were critical of the agency. They may not have always gotten everything right, but they were freer to call things as they saw them and did so, at times to the chagrin of CIA management.
Having an independent inspector general at the CIA produced other advantages for the oversight process: It gave the congressional intelligence committees a more reliable partner — an office that lawmakers could call upon to conduct investigations beyond their own capabilities — and they learned of problems they otherwise might not have come across.
The same dynamic is not possible at the NSA today because the agency’s inspector general is appointed by and works for the NSA director. For all practical purposes, he is a member of the director’s staff and does not report directly to the intelligence committees.
The inspector general of the CIA, by contrast, is appointed by the president and can be dismissed only by the president. That person reports to both the CIA director and the congressional intelligence committees. Although the director may impose constraints on the inspector general’s work, the committees must be advised of such constraints and the reasons for their imposition. This has rarely happened because, as a practical matter, the CIA director has not wanted to put himself in that position vis-a-vis the committees.
Some may point out that the NSA falls under the jurisdiction of the Defense Department’s inspector general, whose office is independent. The NSA, of course, is one of numerous defense agencies, not all of which require an independent inspector general. But a stronger, more independent inspector general is necessary, given the NSA’s size, capabilities, mission and, most important, potential for violating the rights of Americans on a grand scale.
In addition, the Defense Department inspector general’s office lacks the personnel and expertise to oversee the highly technical, compartmentalized world in which the NSA operates. Although the Pentagon inspector general should retain the ability to undertake oversight reviews as may be appropriate — such as studying alleged violations of departmental regulations — the lion’s share of the oversight work belongs with an inspector general within the agency.
An independent inspector general at the NSA with statutory authority would not guarantee that every violation of law or applicable procedure would be detected, investigated or reported to appropriate authorities. But it would improve the chances that this would happen, which should lead to more effective and timely oversight.
Far from being a threat to the agency’s sensitive yet necessary operations, an independent inspector general at the NSA would boost public support for that work.
Britt Snider was general counsel of the Senate Select Committee on Intelligence from 1987 to 1995 and inspector general of the CIA from 1998 to 2001. Charles Battaglia was a senior staff member and staff director of the Senate intelligence committee from 1985 to 1997.