Arguing With Michael Hayden in Aspen

The former NSA and CIA director says the phone dragnet was approved by all three branches of government. Actually, its adoption raises severe Madisonian problems.
Reuters

ASPEN, Colo.—When I learned that former CIA and NSA Director Michael Hayden would be interviewed here on the subject, "National Security 2024: What Might Liberty Look Like?" I made sure to arrive early and secure a front row seat. Interviewer Andrew Ross Sorkin quickly brought up Edward Snowden. "Actually, at NSA," Hayden said, "he is referred to as the one who will not be named." 

He wasn't joking. 

In the ensuing exchange, Hayden argued that the phone dragnet, which gathers metadata on virtually every telephone call made by Americans, is democratically legitimate, and that Snowden is the one who transgressed against representative democracy.

"That program has been approved by two presidents—I should add, somewhat different presidents," he said. "It has been legislated by both branches of Congress, by bipartisan majorities, and reauthorized. It's overseen by the federal court system in the FISA court. If Jimmy Madison were here, he'd call that the federalist trifecta. You have all three co-equal, competing branches of government going check, check, check." But young people today aren't satisfied, he marveled. "The cultural shift is that a lot of people in your generation say that what I just described to you no longer constitutes the consent of the governed, because, all right, you told all those [inaudible] but you didn't tell me. That's a very different formula for representative democracy. What we're seeing in Snowden ... is a really big deal in how we decide as a people to create consent of the governed."

Hayden's analysis is mistaken.

I regard the Section 215 metadata program as illegitimate, and I need not stray from an embrace of the Madisonian system to condemn the process by which it was adopted. By examining various facts that Hayden left out of his highly selective civics lesson, we'll see why Madison would be horrified by the adoption of the phone dragnet. The process behind it was a bastardized version of representative democracy. The constitutionally conservative response would be to eliminate it.

Consider the following:

  1. When Congress passed Section 215 of the Patriot Act, few if any members had any notion that it would be used to justify the bulk collection of telephone metadata, as is incontestable if one reviews the contemporaneous debate about the statute. In fact, Representative James Sensenbrenner, an author of the legislation, has since insisted that the executive branch twisted its meaning far beyond what was ever intended. "As the author of the Patriot Act, I am extremely disturbed by what appears to be an overbroad interpretation," he wrote. "These reports are deeply concerning and raise questions about whether our constitutional rights are secure." 
  2. The executive branch's interpretation of Section 215 wasn't merely "overbroad"—it was secret. The White House illegitimately created a secret body of law by failing to reveal internal legal opinions so dubious that, once revealed, they caused many in Congress, including the act's earliest champion, to denounce them as a farce. James Madison would never embrace a secret body of executive-branch law. Nor would he grant that a law allowing the seizure of records relevant to authorized terror investigations is legitimately interpreted as allowing seizure of all phone records! As Sensenbrenner wondered, "How could the phone records of so many Americans be relevant to an authorized investigation?" If we accept the White House's secret interpretation, the qualifications in the statute become nonsensical.
  3. When Section 215 of the Patriot Act was last reauthorized, so many new members of Congress were unaware of the secret interpretation of the law and the way it was being used that, had those not briefed voted differently, the reauthorization would've failed. And even members of Congress who were notified often lacked staff with sufficient expertise to explain the law to them. It is incredible to regard the reauthorization as a legitimate act of representative democracy when so many representatives were ignorant when voting, including a potential swing block never given the chance to know better.
  4. The House of Representatives is intended to be responsive to the changing passions of the American people. While in office, its members are indeed our representatives, casting legitimate votes on our behalf. At the same time, the opportunity to express displeasure with their actions every two years is inextricable to the design of the institution. So even if one grants that the House is legitimately possessed of the power to approve something like a phone dragnet on all Americans, to additionally claim that they're legitimately empowered to do so in secret is at odds with Madisonian designs. If the American people had no idea that their representatives approved a hugely controversial program that fundamentally alters privacy in the country, the ensuing House elections were not legitimate. The ability to respond to new policies by throwing the bastards out is a necessity in our democracy. In the case of Section 215, that ability was denied to us. 
  5. Section 215 of the Patriot Act is now being litigated in Article III courts, where federal judges have so far disagreed with one another. The Supreme Court will likely decide this in the end. But pointing to the FISA court, and acting as if it constitutes approval of the phone dragnet from a third branch of government, is absurd. This is, after all, a "court" that operates in secret, has its judges appointed by a single man, has only a representative of the government appearing before it, and issues opinions in secret. The notion that Madison would approve such a "judiciary" strains credulity. There is, as well, a strong case to be made that the FISA court is unconstitutional. 
  6. Director of National Intelligence James Clapper committed perjury in a Congressional oversight session by lying to Senator Ron Wyden when he asked a question about Section 215 data collection, an illegal act that went unpunished and mostly unnoticed until Edward Snowden's leaks last summer.

For all these reasons and more, it is wrongheaded and unpersuasive to claim, as Hayden did, that Section 215 was adopted according to the normal, accepted modes of U.S. democracy. On the contrary, the national security state has taken the radical position that vital matters of U.S. governance should be decided and fleshed out in secret, and then kept from the American people for as long as possible.

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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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