When you come right down to it, advocacy for the new FISA bill pretty much hinges on the provision that four inspectors general will investigate and report to Congress regularly on the warrantless surveillance programs. The problem which nobody wants to talk about is that the four IGs are not capable of policing these programs.
Inspectors general, contrary to popular belief, are not fully independent. Neither should anyone ever assume that they can uncover the full 'Truth' about any program. There are a range of institutional problems that IGs face. This excellent report from POGO summarizes the issues well. Inspectors General often are a surprisingly (and poorly understood) weak link in governmental oversight. Even when they're at the top of their game, inspectors general have to surmount daunting hurdles.
I spoke to POGO's lead investigator for that report, Beverley Lumpkin, who agrees that it's far from certain that any IG investigations will uncover the information needed to hold the government accountable for warrantless surveillance.
For one thing, as POGO documents, many IGs can be pressured by agency heads in various ways, even to the point of being investigated by the agency they're supposed to keep watch on.
Central Intelligence Agency Director Michael Hayden, in perhaps the most astonishing known infringement of an IG’s independence, launched an investigation of the agency’s Inspector General, John Helgerson...it appears the main complaint against the IG was that his subordinates had been too harsh in questioning CIA officers about their activities. The IG had earlier issued highly critical assessments of agency employees’ activities in pursuing terrorists, and it is hard to escape the appearance of retaliation in this launching of a “management review.”
With such tenuous independence, drafts of IG reports frequently go to the agency head for comment and 'correction' before being finalized.
In any case, IGs lack subpoena power. Outside their own agencies, they cannot force anybody to talk to them. In addition (as I'll discuss) their resources are limited and usually stretched to the breaking point. So it's naive to assume that they can in practice get to the bottom of a large issue.
Indeed, an inspector general doesn't know what he doesn't know. With classified programs that have many tentacles, what is the chance that an IG will happen upon somebody who's both able and willing to point to all the things that need to be investigated, and the people who ought ideally to be interviewed? With this massive program, IG investigators will truly be feeling their way in the dark.
The FISA bill presumes in any event that IG staffers will be given the security clearances they need to dig into the government's most closely guarded secrets. This is information that Congress has been denied! And yet George Bush denied the necessary security clearances to staffers at DOJ's Office of Professional Responsibility specifically to thwart OPR's investigation of warrantless surveillance. Advocates of the FISA 'reform' bill just assume that cannot happen a second time. After all, we've seen many times with the Bush administration that history does not repeat itself.
Those are the larger problems that confront all inspectors general. In addition, there are specific problems with the four IGs in question (DNI, NSA, DOD, and DOJ). The first two are not statutorily independent. Rather, they're appointed by their own agency. The DNI and NSA IGs cannot and should not be trusted to render a truly independent verdict upon sensitive agency programs. Indeed last July, former DOD IG Eleanor Hill told a Senate Homeland Security hearing that the NSA IG should not be investigating the warrantless wiretapping program (PDF) because of this lack of independence (military IGs acknowledge that they serve "at the pleasure of the Directors of their agencies").
"All of those IGs recongnized that in investigations of very senior officials or in audits of programs dear to the agency head, the statutorily protected independence of the Departmental IG was critical to both the integrity of the inquiry and to the credibility of the findings in the Department, on Capitol Hill, and with the American public. I could not help but recall those conversations when I read reports last year that the oversight of what has been referred to as NSA's "terrorist surveillance program" had been handled by the NSA IG, who has limited resources and no statutory independence, and not by the Department of Defense IG."
So the involvement of the NSA and DNI IGs is not reassuring...if anything, the opposite. Their failure to investigate the programs before the NYT made them public speaks volumes about their credibility as whistleblowers on warrantless surveillance.
The DOD and DOJ IGs have their own problems. To begin with, the DOD OIG does not have its own legal counsel. As POGO's report highlights, the IG is forced to rely on the advice of the Pentagon's Office of General Counsel. With programs as sensitive and legally complex as these, that lack of legal independence is devastating to the DOD IG's ability to render an authoritative verdict. Indeed, the Pentagon Office of General Counsel repeatedly has been involved in exceptionally shady affairs, especially in facilitating Bush's torture regime.
That's the office that will play a major role in framing the legal investigation of the warrantless wiretapping under the current FISA bill. Yes, it ought to shock you.
Furthermore, both DOD and DOJ OIGs have been complaining for years about their lack of resources. No IG can conduct careful investigations of this sort without applying major resources to them. And yet the 2 IGs that do at least have statutory independence cannot meet their offices' current needs. POGO has obtained a new report from DOD IG complaining that its resources are increasingly inadequate to keep on top of current, unclassified Pentagon programs. Indeed, this spring the GAO reported that known DOD problems keep getting worse, despite the IG's best efforts.
Not by chance, DOD Inspector General Claude Kicklighter announced last week he's resigning, though he'd originally promised to stay through the end of the Bush administration. Rumors are swirling in Washington that his reason for leaving early is that his office's profound lack of resources make it nearly impossible to do his job.
DOD OIG has been a huge embarrassment for years, what with one extremely shady IG who resigned in disgrace (Joseph Schmitz), and a nominee to replace him who was utterly unqualified (David Laufman). Now comes news that the man nominated to replace Kicklighter, Gordon Heddell, plans to do the job half time while continuing as IG for the Labor Department. That is some indication of how seriously the current administration treats the critical Office of Inspector General of the Pentagon; there ought to be half a dozen IGs at DOD, perhaps, whereas Bush & Co. are giving us one half of one.
From time to time I've had occasion to investigate the activities of federal inspectors general. Although I admire the work of some of these watchdogs, I've lost any illusions about what they're able to achieve within their institutional and fiscal restraints. That's one of the reasons why I find the FISA bill's dependence on IG investigations ridiculous, and Congressional advocates of it naive. No doubt they'd say the same of me. But I'm not the one who wants to suspend the Fourth Amendment over an abyss by the thin strand of an IG report.
Update [2008-7-9 13:28:25 by smintheus]: A correction: the DNI IG is in fact covered by the Inspector General statute. The more important point remains, however, that currently the position is filled by the agency Director without requiring approval by the President or Senate. My thanks to Beverley Lumpkin for setting me straight on that.