Why Should Congress and the Courts Care About Snooping If Citizens Don't?

There really are checks and balances in our national-security system, but apathy prevents them from exercising rigorous oversight.

The New York Times editorial board complains, "Except for a few leaders and members of the intelligence committees, most lawmakers did not know the government was collecting records on almost every phone call made in the United States or was able to collect anyone's e-mail messages and Internet chats." Further, it adds, "since the public did not know about the extent of the surveillance, it was in no position to bring popular pressure against elected representatives."

The nature of sensitive information, alas, is that it cannot be simultaneously shared with the American public and kept secret from those who mean us harm. If American lives are seriously at risk if information gets out, it seems perfectly reasonable to limit access. That's the reason information classification exists: to share it with only people who both have a demonstrated need to know and are believed, through a series of background checks of increasing rigor for more sensitive secrets, to be trustworthy. (Alas, as we've learned yet again, this vetting process is hardly foolproof.)

Who gets to decide what should remain secret? As I've argued elsewhere, while there's no perfectly satisfying answer, the most reasonable is those senior government officials who have been elected, appointed, and otherwise trained and entrusted to make those decisions. Most obviously, that includes the president, the defense secretary, and our senior intelligence officials.

That's an awful lot of power to entrust to one branch of government, so we have in place a system of checks and balances whereby the two other branches ensure secrecy is not abused and the Constitution is followed. While it's true that "the United States has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth," there is serious reason to doubt the vigor with which these institutions are doing their job. There's very little resistance to intrusive programs if they're done in the name of public safety or fighting terrorists.

On the legislative side, Senator John McCain contends that members of Congressional intelligence committees have all been well-briefed. "We passed the Patriot Act. We passed specific provisions of the act that allowed for this program to take place, to be enacted in operation," McCain said. The degree to what members have been briefed is in dispute, but he surely right that Congress paved the way for this program and others in the frenzy following 9/11. But almost a dozen years have passed now and there's very little evidence that they're interested in taking any of that power back.

One legislator taking his oversight responsibilities seriously is Ron Wyden, an Oregon Democrat and member of the Senate Intelligence Committee. Back in March, he asked James Clapper, the director of national intelligence, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" and was told, "No, sir."

Given that we've since learned that the NSA is collecting tons and tons of data on hundreds of millions of us, Clapper would appear to have lied. But, as Bill Clinton might say, it depends on what the meaning of "collect" is. In defense-intelligence circles it has for decades been understood that "Data acquired by electronic means is 'collected' only when it has been processed into intelligible form." But Wyden quite reasonably isn't buying that explanation.

Perhaps Clapper thought this was not a question he could answer truthfully in a public hearing. But, given that he had the question in advance, he could easily have communicated that concern to Wyden and to committee Chair Dianne Feinstein or Vice Chair Saxby Chambliss. It's conceivable that keeping even the rough outlines of the program secret is necessary. But Congress has a crucial role in deciding such things and, quite obviously, can't perform it without being properly informed.

Then again, it's not at all clear that an informed Congress -- or even informed intelligence committees -- would matter. We've seen time and again in the almost dozen years since the 9/11 attacks an almost bipartisan deference to the executive. Wyden is in a tiny minority; most at least publicly side with McCain, Feinstein and others who see these programs as critical to protecting the Republic.

Presented by

James Joyner is an associate professor of security studies at the Marine Corps Command and Staff College and a nonresident senior fellow at the Brent Scowcroft Center on International Security at the Atlantic Council.

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