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Jun 13 2013

Friedersdorf on Meaningless Oversight

One of the arguments being made by the Obama administration in defense of the newly revealed surveillance programs is that it’s all okay because elected members of Congress were briefed on it and are okay with it. Conor Friedersdorf points out why that claim is pretty meaningless, as is the idea of congressional oversight in general when dealing with these secret programs:

Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what’s happening is horribly wrong, but can’t tell anyone why because it’s illegal just to air the basic facts.

Our senators have literally been reduced to giving dark hints…

It’s one thing to keep the identities of CIA agents and the location of our nuclear arsenal classified. But this is something different. The national-security state, as currently constituted, is removing many of the most important moral and strategic policy questions we face from the realm of democratic debate and accountability. In a real sense, our current approach is preventing our system of government from functioning in very basic ways that the Framers intended.

He’s right. The Senate Intelligence Committee gets briefed on these programs, but almost certainly only gets a portion of it. And on that committee, we have two prominent members who have for years been speaking out against those secret programs while trying not to reveal secrets that could get them in legal trouble. Ron Wyden and Mark Udall have been saying very loudly that if the American public knew what was really going on, they’d be outraged. So it isn’t true that Congress has been briefed on this and is okay with it; the ones that actually give a damn about civil liberties and limiting executive power — no, Dianne Feinstein, you are not on that list — have been sounding the alarm for years as best they could.

Add to this the fact that the NSA and the DNI routinely lie to Congress and it becomes obvious that Congressional oversight is mostly a sham.

6 comments

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  1. 1
    Modusoperandi

    “Add to this the fact that the NSA and the DNI routinely lie to Congress and it becomes obvious that Congressional oversight is mostly a sham.”

    Sure, but it’s either that or having Ted Cruz sticking his fingers in to it. Plus, every time there were two incompatible databases or somesuch, John McCain would rush in to fix it (Press conference afterwards: “Well, when I heard that their was a RAID failure, I knew I was the man to tell those hard drives to ‘Cut out all that nonsense’.” ~ John McCain).

  2. 2
    abb3w

    It seems to me that if there are two senators who are that uncomfortable with what has been told to them in the Intelligence Committee, the procedurally obvious thing to do would seem to be for one to move and the other to second motion to a closed debate session (which is itself sufficient for closing the Senate) and bring their concerns at least to be debated by proxies for the American public.

    This isn’t without risks. There would almost certainly be distorted leaks, which might compromise effectiveness of the spying without even decreasing the intrusion on ordinary Americans’ privacy, for the worst of both worlds. It’s possible that a majority of Senators might well say “we’re fine with all this spying on the public”. It’s even imaginable (closed door sessions are a pain in the ass, and likely to leave a lot of folk cranky) a majority might respond by voting to censure or expel the Senators who brought it up, or at the very least take away their seats on the committee.

  3. 3
    greenspine

    Has there effectively been a coup in the American government? If there are portions of American law and government programs that the elected representatives aren’t even allowed to know about, let alone the people, it sounds like there is another level of government above the one we’re told about.

  4. 4
    atheist

    @greenspine – June 13, 2013 at 11:27 am (UTC -4)

    Has there effectively been a coup in the American government?

    Good question. Personally, I suspect there hasn’t been a coup so much as a sea change. Activity that was covert in, say, the 1980s, has become overt since 2001.

  5. 5
    doublereed

    Has there effectively been a coup in the American government? If there are portions of American law and government programs that the elected representatives aren’t even allowed to know about, let alone the people, it sounds like there is another level of government above the one we’re told about.

    I don’t think representatives have to have security clearances. And keep in mind that even with security clearances they have to have a need-to-know about it before being briefed. The idea that representatives aren’t allowed to know about something isn’t that ridiculous. It’s more that government secrets are highly compartmentalized, which is a good thing.

  6. 6
    Nihilismus

    U.S. Const. Art. I § 5:

    Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

    Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

    U.S. Const. Art. I § 6:

    The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

    I would think dissenting members on an intelligence committee could try to call for the full house to debate an issue, and such debate could be kept secret with the concurrence of half the house. Then we’d at least have some assurance that our national security policy reflects the will of Congress, which theoretically should reflect the will of the people. It does me no good to vote for a member of Congress who is a strong advocate for privacy rights if that member will not be appointed to the elite intelligence committees (which are probably mostly composed of “security above all” legislators) or, even if appointed, could not voice concerns to the full house.

    Sure, with 535 legislators (plus probably the non-voting territory representatives), a leak might be more likely. But the Constitution allows for federal legislators to be arrested for treason and felonies, so a leak outside of Congress could still be prosecuted. If a legislator, in an open hearing or floor debate in Congress, purposely blurted out something secret, he or she probably could not be arrested or “questioned” for that speech, but that legislator could be expelled by a two-thirds concurrence of the particular house.

    The point is, I think Congress can develop a system where oversight is actually meaningful and still adequately protects secrets that deserve to be secrets.

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