Winning Back the Checks and Balances of American Government?
*Cross-posted from The Huffington Post
It's hardly the
fall of the Berlin wall, more a knocking away of a block or two away:
Yesterday, the Justice Department announced that it would allow a
handful of legislators to look at a key document related to National
Security Agency's newly amended domestic spying program.
Like other concessions, today's development is far less than first
appears. Worse, it risks obscuring the truly troubling questions about
accountability and oversight, questions that are becoming all the more
pressing now Congress is making tentative moves to play its proper
constitutional role.
Some background: In December 2005, James Risen and Eric Lichtblau of the New York Times
broke news that the NSA was spying without warrants on Americans in the
homeland. Past Administration denials morphed overnight into vigorous
defense: How dare the Times, or anyone else, even discuss, let alone
question, the illegal and secret tactics that the President chose to
use in derogation of Americans' privacy rights? To do so was, the
Administration implied, to give aid and comfort to the enemy.
Law suits followed, with the ACLU and CCR leading the charge in
suits in Detroit and New York. (Full disclosure: I am counsel on an
amicus brief filed by the NAACP and other civil rights in opposition to
the NSA's spying). In August 2005, Judge Anna Diggs Taylor of the
federal district court in Detroit issued an opinion finding the
executive in violation of the First and Fourth Amendments. What
followed was an avalanche of calumny on Judge Taylor's head, especially from conservative commentators.
The government appealed Judge Taylor's decision to a federal appeals
court, the Sixth Circuit. Just as that case was about to be heard, it
tried to the cut the legs out from under it: A little more than a week
before the hearing, which took place yesterday, Attorney General
Alberto Gonzales announced that the Administration would henceforth
secure judicial warrants from the Foreign Intelligence Surveillance
Court, rather than operating without warrants under a new arrangement worked out with that court.
And even though that court's chief judge openly said there would be no
problem in releasing details of the new arrangement, Gonzales resisted
any disclosure of the "arrangement," leaving grave doubts about whether
the new policy falls within the law.
Hence the relevance of yesterday's announcement: Even as the Sixth
Circuit was pressing Deputy Solicitor General Greg Garre on his
argument that the case should be dismissed as moot, the Administration
was backing off from its "no disclosure" position, and saying that
members of the intelligence committees and certain House and Senate
leaders would be able to see the details of the new arrangements.
Yet what seems to be a comprehensive climb-down both in the courts and in Congress is far less than meets the eye.
Take first the government's apparent retreat from warrantless spying
on Americans: In the Sixth Circuit hearing yesterday, it became quickly
apparent that the government has not backed down from the claim that it
has the power to override privacy laws, not to mention the First and
Fourth Amendments, in the name of national security. By backing off
just as the Court was poised to decide, Garre explained,
the Government wanted to pre-empt a potentially unfavorable ruling
while also preserving its ability to re-start warrantless spying. It
gets, in other words, to have its cake and eat it.
Then consider the decision to disclose to Congress. A year ago, when
news of the NSA's warrantless spying broke, the Bush Administration
said that it had provided "more than a dozen briefings" to Congress. As
I explain at length in a forthcoming book,
the Administration limited its briefing to a small group of legislators
and barred their staff. For busy legislators, this arrangement meant
that they might gain some limited insight into what was happening - but
then they had no way of developing either the facts or the legal bases
of what was being done. That is, the Administration was able to claim
it had disclosed to Congress but at the same time it had deprived
legislators of the opportunity for oversight.
The kind of openness being promised now is exactly the same kind
that was used before to create disclosure-without-accountability.
Hence, unless the legislators concerned push, and make sure their staff
and their colleagues can examine the new "arrangement," there cannot be
the kind of robust debate and interrogation of the Administration's
newfound respect for the law.
Worse, the Administration is insisting that this disclosure does not
create any precedent: It intends to remain as tight-lipped as always,
keeping from Congress the documents and facts that legislators need to
do their job.
Indeed, the document that was disclosed yesterday is one that
implicates the most minimal of secrecy concerns, and raises the largest
red flags when left undisclosed: It is a document not about the facts,
but about the legal regime that governs counter-terrorism operations.
But should the law ever be secret? The argument that terrorists can
learn anything from the abstract categories used to establish the metes
and bounds of a program is absurd, particularly in the wiretapping
context: Laws or legal rules, which are framed in terms of
generalities, have never been thought to "tip off" terrorists - but
they are vital to oversight. How can citizens hold their elected
leaders to account if they don't even know what policies they adopt?
In fact, there is ample historical precedent for forcing the
executive to yield up information even in the national security
context. One of the earliest invocations of executive privilege, was by
President George Washington. It concerned a congressional inquiry into
a failed November 1791 military expedition. Washington eventually gave
the information up (although he insisted on his right to withhold
information). Since then Congress has been vigorous in seeking
disclosure from the executive, especially when there is evidence of
wrong-doing or law-breaking).
Disclosure should not be at the executive's pleasure, as the Justice
Department yesterday suggested: It is a constitutional compulsion,
necessary for Congress to do its job. Rather than accepting piecemeal
revelations at the whim of Mr. Gonzalez, Congress needs not only to
start issuing subpoenas but to start holding hearings and legislating
on new disclosure rules and new structures to ensure meaningful
accountability not just today, but for the future.
Aziz Huq: "Winning Back the Checks and Balances of American Government?" (pdf)
