Bringing democracy to national security policy

In the aftermath of Edward Snowden's disclosures, public debate largely focused on balancing personal privacy and national security interests as they relate to governmental collection of communications data.  While this approach is fruitful, it consumes so much attention that it inadvertently overshadows a fundamental question: who authorized the government’s wide-reaching national security policies and who oversees and reviews their implementation?

Our political system depends upon a series of checks and balances to keep government in its proper place and avoid an undue concentration of power.  The reverberations from Mr. Snowden's disclosures reveal just how broken our political system is when it comes to national security.

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Take the FISA court.  At creation, the court's role was very narrow: review executive branch requests to secretly surveil individuals inside the U.S. suspected of acting as foreign intelligence agents.  Over time, however, its role expanded to review broad constitutional and operational questions.  Yet, in the words of former Sen. Walter Mondale (D-Minn.), who helped create it, the FISA court "never had the authority to declare law" but nevertheless is "now taking cases that should go to regular federal courts."  Indeed, the court’s jurisdiction now extends well beyond that envisioned by Congress, it evades public accountability by issuing secret opinions, and it undermines traditional Article III courts empowered to address these questions in an adversarial setting.  It is secret law made flesh.

The executive branch also has shown a disturbing willingness to sideline co-equal branches of government by unilaterally and secretly reinterpreting federal law and the Constitution itself.  The executive branch’s expansive interpretation of the law so disturbs Rep. Jim Sensenbrenner (R-Wis.), one of the authors of the USA PATRIOT ACT, that he now leads a bipartisan effort to amend the act to curtail the domestic surveillance powers of intelligence agencies.  The administration has ignored this rebuke, claiming to have put in place its own mechanisms to prevent abuse of intelligence gathering authority.  But the lack of independent oversight is tantamount to allowing the fox to guard the hen house.

Inexplicably, Congress quietly acquiesced to the executive branch’s insistence upon maintaining sole responsibility for the government’s intelligence operations.  The intelligence oversight committees—created after national security scandals that included the assassination of foreign leaders, infiltration of peaceful domestic political groups, and dirty tricks at home and abroad—have become the intelligence community's biggest cheerleaders.  Oversight, such as it is, now is the province of the anemic "gang of eight"—the leaders of the two parties in both the Senate and the House, and the chairs and ranking members of the House and Senate intelligence committees—essentially walling-off all other members of Congress from the information and tools to which they are constitutionally entitled.  Further, members of Congress often are prohibited from relying on their own staff for assistance and, in many instances, from exercising the right to speak out on issues of public concern.

Finally, even the minimal oversight that does take place focuses almost exclusively on two provisions of law concerning certain aspects of electronic communications.  It largely does not extend to other legal authorities the administration has assumed or invented to sustain secret programs.  It excludes the scope of unlawful activities.  It does not look at the big picture.  And it does not start at the first principle of our constitutional republic: what policies do we, the people, want our government to pursue?

Now is the time for a full reckoning.  At the close of the constitutional convention, Benjamin Franklin cautioned we have "a republic, if you can keep it."  To keep it, we must first know what has been done in our name.

Schuman is policy director for Citizens for Responsibility and Ethics in Washington (CREW).