Briefing the Intelligence Oversight Committees Isn't Enough

The whole Congress should debate and vote on significant policies.

Congress "in effect signed off on" the NSA's surveillance programs, according to Dick Cheney, who defended the Bush-Obama counterterrorism policy on Fox News Sunday. How does he figure?

A transcript:

We set up this program back in the weeks after '01. We briefed members of Congress, chairmen and ranking members of the intelligence committees. We did it in my office, in the West Wing. Mike Hayden come in, George Tenet, I was there, and we'd give them the layout of what we were doing and what we were learning from it.

Eventually we did it for the elected leadership of the Congress, both parties, both houses. So, we had senior officials in Congress and eventually, obviously, the FISA courts, who read into the program, knew what we were doing and had in effect signed off on it.

I once asked a collected group, the big nine in the spring of '04 in the briefing. First we briefed them and said, do you think we ought to continue the program? They said absolutely yes. Then we said, do you think we ought to come back to the Congress and get additional legislative authorization? They said absolutely not, it will leak. Those were the senior leaders in the Congress at the time.

This is clarifying.

Forget the Constitution that took effect in 1789. We're operating under a new theory. The need for Congressional authorization is now determined by "the big nine" in informal, off-the-record conversation with the vice president. Why hold hearings, participate in public debates, and take votes with representatives from all the states (in the Senate) and all the Congressional districts (in the House)? Instead, use the privileges extended to the intelligence oversight folks to co-opt them, so that they'll even mislead Americans on your behalf, like Senator Dianne Feinstein does. Then treat the co-opted group's judgment as though it's a legitimate stand-in for their colleagues, even if a minority of them express deep concern that authority is being abused.

This is an especially perverse outcome given the fact that the intelligence oversight committees were established to rein in past abuses by the executive branch but are now enabling more. Indeed, President Obama is playing a version of Cheney's game. Guess what, gents? The policies you maneuver into place aren't legitimate when the normal processes of American government are sidestepped. The Madisonian system can't work if we permit the president to subvert it.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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