The Impasse on Executive Spying

In an important post the other day, Steve Vladeck described what he believed to be the most important lesson Edward Snowden has taught us.

They miss the single most important lesson we’ve learned — or should have learned — from Snowden, i.e., that the grand bargain has broken down. Intelligence oversight just ain’t what it used to be, and the FISA Court, as an institution, seemed to have been far better suited to handle individualized warrant applications under the pre-2001 FISA regime than it has been to reviewing mass and programmatic surveillance under section 215 of the USA PATRIOT Act and section 702, as added by the FISA Amendments Act of 2008.

Thus, even if one can point to specific individual programs the disclosure of which probably has not advanced the ongoing public policy conversation, all of the disclosures therefore illuminate a more fundamental issue of public concern — and one that should be (and, arguably, has been) driving the reform agenda: Whatever surveillance authorities the government is going to have going forward, we need to rethink the structure of oversight, both internally within the Executive Branch, and externally via Congress and the courts. That’s not because the existing oversight and accountability mechanisms have been unlawful; it’s because so many of these disclosures have revealed them to be inadequate and/or ineffective. And inasmuch as such reforms may strengthen not just mechanisms of democratic accountability for our intelligence community, but also their own confidence in the propriety and forward-looking validity of their authorities, they will make all of us — including the NSA — stronger in the long term.

While I agree with Vladeck that’s an important lesson from Snowden, I don’t think it has been admitted by those who most need the lesson: most members of Congress (most of all, the Intelligence Committees) and the FISA Court, as well as the other Article III judges who are quickly becoming dragnet experts.

But I’m hopeful PCLOB — which is already under attack even from Susan Collins for having the audacity to conduct independent oversight — will press the issue.

As I have noted in the past, PCLOB has a better understanding of how the Executive uses EO 12333 than any other entity I’ve seen (I think the Review Group may have a similar understanding, but they won’t verbalize it).

That’s why I find their treatment of FISA as a compromise to put questions about separation of powers on hold so interesting.

In essence, FISA represented an agreement between the executive and legislative branches to leave that debate aside 600 and establish a special court to oversee foreign intelligence collection . While the statute has required periodic updates, national security officials have agreed that it created an appropriate balance among the interests at stake, and that judicial review provides an important mechanism regulating the use of very powerful and effective techniques vital to the protection of the country. 601

600 “[T]he bill does not recognize, ratify, or deny the existence of any Presidential power to authorize warrantless surveillance in the United States n the absence of the legislation. It would, rather, moot the debate over the existence or non – existence of this power[.]” HPSCI Report at 24. This agreement between Congress and the executive branch to involve the judiciary in the regulation of intelligence collection activities did not and could not resolve constitutional questions regarding the relationship between legislative and presidential powers in the area of national security . See In re: Sealed Case , 310 F.3d 717, 742 (FISA Ct. Rev. 2002) (“We take for granted that the President does have that authority [inherent authority to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President ’ s constitutional power.”).

When NSA chose to avoid First Amendment review on the 3,000 US persons it had been watch-listing by simply moving them onto a new list, when it refused to tell John Bates how much US person content it collects domestically off telecom switches, when it had GCHQ break into Google’s cables to get content it ought to be able to obtain through FISA 702, when it rolled out an Internet dragnet contact-chaining program overseas in part because it gave access to US person data it couldn’t legally have here, NSA made it clear it will only fulfill its side of the compromise so long as no one dares to limit what it can do.

That is, Snowden has made it clear that the “compromise” never was one. It was just a facade to make Congress and the Courts believe they had salvaged some scrap of separation of powers.

NSA has made it clear it doesn’t much care what its overseers in Congress or the Court think. It’ll do what it wants, whether it’s in the FISC  or at a telecom switch just off the US shore. And thus far, Obama seems to agree with them.

Which means we’re going to have to start talking about whether this country believes the Executive Branch should have relatively unfettered ability to spy on Americans. We’re going to have to take a step back and talk about separation of powers again.

12 replies
  1. orionATL says:

    a nsa-like “national security” organization can certainly be limited, controlled, and restrained.

    but that cannot happen in the present climate where socially acceptable political speech critical of a security organization carries a very high political penalty for the speaker. in this climate, congress, the presidency, and the courts treat “national security” bureaucracies with extraordinary obsequiesness,

    a climate where even those who thoroughly understand how dangerous to our democracy, arrogant, and malign these are dare not publicly express their concerns about the constitutional dangers, the ineffectiveness and errors, or the social and financial costs.

    security organizations, by their nature, should never be trusted. that is why the guys in philly in 1785 put a civilian in charge of the militaty. that civilian, a president, had alas been accretionally gifted with so much power that he/she now also poses a threat to our democracy.

    as for our nsa as it exists in its current dangerous, unfocused, and probably substantially useless state,

    the short rules for controlling it are:

    – a very strong whistleblower statute that gives full faith and crefit to the whistleblower rather than the security bureaucracy.

    this is the ultimate lesson snowden has taught us:

    whistleblowers are essential guardians of democracy and national security.

    insiders have a big edge in exposing a security bureaucracy’s errors and depredations of law.

    – a set of sister statutes that impose strong limits and penalties on security officials who lie, evade the law, punish whistleblowers, or mislead congress or the courts or the presidency.

    these same strong limits should apply to public lawyers, including doj lawyers, with particular force and severity.

  2. emptywheel says:

    @EH: Yes.

    Thus far the most effective limit has been when courts refuse their evidence, but so much of what they do with this is only now getting to the courts (like no fly designations).

  3. Nell says:

    Which would be a good thing, since a secret, non-adversarial court process was a manifestly crappy excuse for “reform” of executive abuse of power to begin with.

  4. der says:

    Congress can solve this if they had the spine. My contribution: 1. a Congressional auditor with full powers and access both to NSA and their private contractors operations, and 2. cut off the money.

  5. emptywheel says:

    @der: Steven Aftergood has suggested putting GAO in charge of reviewing these programs.

    It’s a good suggestion.

  6. TarheelDem says:

    Has NSA made it clear that it doesn’t care what the President thinks?

    Or is the President asserting that his powers as commander-in-chief supersede the Bill of Rights? The public needs some clarity about this issue because the President continues to fuzz it.

    There is no restoration of accountability as long as there is absolute state secrecy that allows the authorities who classified something to continue to hide it. The bias is always in the direction of the classifying authority, who alway have the most incentives to prevent declassification of information about wrongdoing.

    The most far-reaching measure would summarily declassify everything, eliminate the classification system held over from World War II, and find some other mechanism for holding temporarily secret (nothing in a democracy ever should be permanently secret) those immediate items of importance.

    Given the dynamics of double government going on between the national security state and the consitutional officials who give it legitimacy and dignity, maybe the constitutional state needs reassert itself, If we really are beyond that point, we need to know that as well.

  7. earlofhuntingdon says:

    Your lengthy, partial list of NSA’s behavior describes a management team and procedures that are willfully out of control. Presumably, it is beholden to the control of political insiders, though it seems as likely that it is controlled only by its top managers, those it employs and those who direct its work through their employment with a myriad of private contractors.

    The NSA is a planet eater managed, not pursued, by Captain Decker, one that Spock and Kirk would easily recognize. It needs to be reorganized from the top down for the same reason that Jamie Dimon’s bank needs to be reorganized (the one that just doubled his salary): a good idea has become a criminal enterprise.

  8. thatvisionthing says:

    ew, you write so fast – late question about how long stuff is retained, here, could you please look? – Snowden says 5, Poitras and Risen said 5+10, PCLOB says no limit to corporate store, and finds a private phone co. database that kept records for 26 years though only 18 mos is required? Plus, wondering does this vary by agency and by authorization, 702 vs 215 vs 12333 vs…? Is it possible to stand far enough back to see all the walnut shells, much less turn them all over? Thanks, I think my brain will never be big enough, and then I wonder whether any oversight can ever really do it. I think your second to the last paragraph here says no.

    Also, psst, at Corrente I see you’re pegged as the top story right now, “In the wonky weeds with Marcy” – – congratulations!

  9. thatvisionthing says:

    Also, me the dummy in the bleachers whose one epiphany was “juries” – as in, the original constitutional juries that judges and justices deferred to and could judge both the accused AND the law? You know, THAT check and balance by the original authority, we the people? (I’ve quoted first Supreme Court Justice John Jay forever, so I think a search on “Brailsford” or “juries epiphany” would turn up tons of my old comments – yep, just tried it at duckduckgo: juries epiphany site:

    I just want to say this sometime someplace in this blizzard of NSA posts, so, here, now. This is a snipe hunt. You can never cut back the rot or disease to get to healthy, because the premise is diseased. The premise is witches. The premise is angels. The premise is good guys bad guys. The premise is authority = security. I think that’s all a fail path. Like, Salem, hello.

    The jury epiphany I had really was an epiphany to me, because I think up till then I was caught up in the authority snipe hunt, that if we could just get on top of this game we would WIN, whew. But when I saw that juries were supposed to judge the law, and no law was law until a jury confirmed it at that moment, and that’s America and Britain before us, then the whole question about “legal” changed. And the game changed from authority and punishment, to reasonable people reasoning together. And the model wasn’t a museum statue anymore, it moved. It wasn’t a too-precious-for-you-to-touch ship in a bottle, it was the ship I was on and the sails filled and it moved. And suddenly there was air and wind and sea and stars, and I was breathing and I had been someplace and I could go someplace. Relief! Joy! Suddenly reality. Suddenly consciousness. Suddenly agency. And everybody mattered together. (<– poetry just happened)

    So when I watch all this legal parsing and setting aside fewer and fewer people/agencies/angels who are designated trustworthy, I'm like no no no no no no no, wrong.

    And none of this spy stuff is constitutional, because the Constitution is about people reasoning together, equal people who can think and feel and have consciences and learn and understand humor and purpose and try to divine wisdom beyond instructions, and that’s the fucking point of it all, pursue happiness now, everyone, humanly, in this real world. (Oh look, climate change! Oh look, trees! whoops, you missed them) And we the people voted for none of this NSA crap, and we’ll never sit on the jury, the jury that can never be empaneled or hear the truth, the whole truth and nothing but the truth, and can never judge the law because, you know, even if it wasn’t secret, jury nullification went out sometime after the first Supreme Court Justice articulated it so well to the jury he sat with in Brailsford.

    So, you know, fuck this all, we are all fucked. If you really (I know, but) wanted to stop terrorism, I’d say start listening to people everywhere as equal people not terrorists, and everybody treat everybody as reasonable beings, do unto others as you would have them do unto you, you know, and let it start with us. We all check and balance and help each other. But we can’t do that, not with an NSA uber alle.

    Stop the snipe hunt, stop the witch hunt, stop the angel hunt. There aren’t any.

    Found this: Yes.

    Witches and angels and sheep, oh my!

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