Crossposted in The Boston Review.
In a recent court filing, Justice Department attorneys stated that the National Security Agency’s (NSA) collection of Americans’ telephone records under section 215 of the Patriot Act “is rigorously overseen by all three branches of government.” It’s a refrain that has become so commonplace among the program’s defenders, one wonders whether some of them have made it their ring tone. The implication is clear: Relax, there’s nothing to worry about, we have oversight.
These officials aren’t entirely wrong, although it might be more accurate to characterize what the section 215 program receives as oversight “lite.” When executive officials brief the congressional intelligence committees on the program, they choose what information they will present and the terms on which they present it. Members may ask questions, but they must know the right questions to ask, and they have little basis to evaluate the adequacy of the response. They also have little incentive to push back, as no voters or donors are privy to the process and it’s politically much safer on national security matters to say “yes.”
If an enterprising member of Congress somehow discerns that the intelligence committees have information he or she wants to see, the member may in theory be granted access. But the terms of that access can be quite stingy— the member may be prohibited from taking notes, for instance. And members may not have staff with the requisite security clearances, leaving them on their own to muddle through complex, highly specialized information.
There is also oversight by the Foreign Intelligence Surveillance Court(FISA Court). As I’ve previously written, however, it would be unreasonable to expect a secret court to provide the same checking function as a regular one. The adversarial process isn’t an atavistic appendage to the legal system: it’s the way we ensure that our courts get to the truth. Without it, courts are far more likely to make mistakes – and, when a court operates in secret, there’s no way to file an appeal to correct the error.
Then there’s oversight by the executive branch itself. Internal oversight is certainly preferable to no oversight. But it can never substitute for external checks for the simple reason that self-policing involves a conflict of interest. To be sure, some inspectors general and agency attorneys have exercised admirable independence in performing their oversight duties. Others have not.
More fundamentally, though, the officials defending the NSA’s section 215 activities appear to have forgotten the purpose of oversight. It is a means to an end, not an end in itself. Its purpose is to guard against government action that is contrary to our law, our values, or our reasonable expectations. It accomplishes this purpose in two ways: by deterring misconduct in the first instance, or, where that fails, by unearthing it so that remedial action may be taken.
If we already know the government violated the law, the fact that its actions were subject to oversight does not excuse the violation. Oversight can deter or illuminate misconduct, but it can never legitimize it. To the contrary, if the government has been acting improperly despite oversight, it suggests that the oversight mechanisms aren’t working well— or, alternatively, that there’s been a breakdown somewhere between oversight (uncovering the misconduct) and accountability (remedying it).
Nor can oversight cure substantive defects in the law itself. If the law plainly allows the government to intrude on Americans’ privacy, conducting oversight to ensure compliance with the law will not help matters. If an ambiguous law is interpreted to permit such intrusions, oversight may bring the problem to light, but the solution lies in clarifying the law.
Consider what may be the best-known example of effective oversight in modern American history: the Church Committee, convened by the Senate in the aftermath of Watergate. Armed with subpoena power and fueled by public outrage over reports of the CIA’s domestic spying, the committee uncovered massive amounts of information about the programs of the FBI, the CIA, and the NSA spanning multiple administrations. It compiled conclusive evidence that federal law enforcement and intelligence agencies had systematically used their information-gathering authorities to disrupt social justice movements and harass political enemies.
And yet, if the story had ended there— if Congress had concluded that it had checked the oversight box, and its work was finished— it’s unlikely the Church Committee would be remembered today as an exemplar of government accountability. The committee’s work prompted the enactment of multiple new laws and policies. Some of these— such as the Inspector General Act and the creation of the congressional intelligence committees— served to ensure continued oversight. Others— such as the Foreign Intelligence Surveillance Act, the Privacy Act, and the Attorney General’s guidelines for FBI investigations— regulated and limited the government’s ability to collect and share information about Americans.
Too often today, the government’s response to the emergence of problematic practices is simply to add more oversight—usually of the internal, executive branch variety—even when the issue is one of substance rather than process: Do the Justice Department’s guidelines allow it to withhold notice from media organizations when it subpoenas reporters’ phone records? Add a provision requiring the Attorney General to sign off on the withholding. Is the government using the “state secrets” privilege to shut down entire lawsuits, rather than to shield particular items of evidence? Create a committee of attorneys to oversee the practice. Are customs agents permitted to search American travelers’ laptops when they return from international travel without any reason to suspect wrongdoing? Require supervisory approval for the searches. None of these solutions address the problem at hand: rules that give the government more leeway than it should have.
In other instances, the government denies that any problem exists and points to existing oversight mechanisms as proof that all is well. The NSA programs are a case in point. As noted above, these programs were subject to congressional and judicial oversight, albeit a secret and watered-down version. That fact doesn’t answer the question: Should the government be collecting every record of every phone call placed by every American? Is that practice consistent with a law that permits collection only when the records are “relevant” to an authorized foreign intelligence or international terrorism investigation? Is it consistent with our vision of how the government should interact with its citizens in a free society?
Adequate oversight is a sine qua non for good government. But the mere existence of oversight mechanisms should never be an excuse for complacency or a substitute for laws that adequately protect our rights and our freedoms. If the government is acting badly despite oversight, we need better oversight, better rules, or both. It’s time for the NSA programs’ defenders to sing a new song.