Whether the NSA’s surveillance programs violate the Constitution and/or statutes remains to be seen, but the confusion on Capitol Hill over last two weeks has demonstrated that Congress needs to exercise better oversight of those programs and method.  It’s understandable that the classified legal capabilities and activities should get reviewed in closed session and that Congress should resist calls to expose — and therefore destroy — those capabilities.  The American people need to trust, though, that their elected representatives in Washington are keeping an eagle eye on such efforts to protect our liberty as well as our security.

But what about explaining just how Congress exercises its oversight, even without dealing with any classified material?  Apparently, even former staffers to the Senate Intelligence Committee aren’t allowed to talk about holding Congress accountable:

The Senate Select Committee on Intelligence has taken the unusual step of actively blocking a former committee aide from talking to TPM about congressional oversight of the intelligence community. At issue isn’t classified sources and methods of intelligence gathering but general information about how the committee functions — and how it should function. The committee’s refusal to allow former general counsel Vicki Divoll to disclose unclassified information to a reporter was the first and only time it has sought to block her from making public comments, based on her experience as one of its most senior aides, since she left Capitol Hill in 2003.

The committee’s decision comes amid fallout from leaks of classified National Security Agency documents by ex-NSA contractor Edward Snowden. In light of the Snowden revelations about the country’s secret surveillance programs, TPM was reporting a story based on interviews with members of Congress and current and former aides about the successes and pitfalls of intelligence oversight on Capitol Hill. The goal was to answer some basic questions for readers: How does a classified process differ from public oversight? What challenges do the combination of government secrecy, classified briefings, and strict committee protocols present to legislators trying to control the nation’s sprawling intelligence apparatus?

Divoli had given interviews on this topic in the past, and the committee had never raised more than small and specific concerns about how the information would be communicated.    Now that the heat is on over the apparent lack of oversight on NSA — and certainly the widespread confusion over who was briefed about what and to what extent — the committee quashed the interview altogether.  They told Divoli that her non-disclosure agreement from a decade ago bars her from discussing how the committee operates in terms of oversight.

That raises some questions in and of itself.  The non-disclosure agreement appears to be separate from her clearance on classified material.  It specifically relates to the conduct of the committee itself and not the material it reviews.  While NDAs are common in the private sector in order to protect proprietary information from competition, the public sector has no competition against which to protect.  In fact, the public sector in the US is supposed to be honest and open about its operations, with the trade-off of secrecy for only that data which relates to either privacy for US citizens or national security.  The actions of elected officials aren’t supposed to be shielded from view.

I agree that there are no simple answers on security and freedom.  However, oversight by elected officials has to be robust and transparent in order for Americans to trust that their rights are being respected.  If we can’t even ask the questions about how that oversight gets exercised, then Congress will find that there are no easy ways to sell “Trust us” as their version of a simple answer.