President Obama was in San Jose on Friday to talk about the Affordable Care Act. But he took the opportunity to try to calm the furor over new revelations that his administration is presiding over unprecedented surveillance of telephone and digital communications.
"These programs were originally authorized by Congress," President Obama said. "They have been repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress is continually briefed on how these are conducted. There are a whole range of safeguards involved. And federal judges are overseeing the entire program throughout."
Obama's comments make it sound like the programs are subject to rigorous and continuous oversight. But the simple fact that Congress is briefed and federal judges are involved doesn't mean either branch is actually able to serve as an effective check. The excessive secrecy surrounding these programs makes that unlikely.
Take Congress. When the government has briefed members of Congress on its surveillance activities, it has often been in meetings where "aides were barred and note-taking was prohibited."
It's impossible for Congress to provide effective oversight under those conditions. Members of Congress rely on staff to help them keep track of legislative details. They need independent experts to advise them on complex technical issues. And they need feedback from the constituents they ultimately represent. But the senators briefed on these programs couldn't speak about them. Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) were reduced to spending years trying to hint at the existence of programs they weren't able to actually tell anyone about. Only now can anyone see what it is they were trying to tell us.
Meanwhile, the 2008 FISA Amendments Act cut judges out of their traditional role of reviewing individual surveillance requests. Instead, it asks judges to approve broad categories of surveillance. The law gives judges little leeway to reject proposed surveillance programs, and in any event judges lack the expertise and resources to perform this quasi-legislative oversight role effectively.
With both Congress and the courts effectively neutered, their traditional functions — defining the rules and making sure they're enforced — are now largely being performed inside the executive branch. In place of legal standards defined by Congress and enforced by an independent judge, we now have "minimization procedures" defined by some executive branch officials and applied by others. There's no opportunity for public debate about these rules and no independent oversight into whether the rules are being followed in individual cases. And there's ample evidence that letting the executive branch police itself is a recipe for abuse.
Supporters of the NSA's programs generally make two arguments for the current arrangement. On the secrecy front, they argue that revealing details of the government's surveillance activities could tip off terrorists to the government's capabilities, making it harder to thwart attacks. On the judicial oversight front, they argue that individualized warrant requirements prevent the government from engaging in algorithmic surveillance. Neither argument is convincing.
It's conceivable that secrecy about U.S. surveillance capabilities gave the U.S. government a fleeting advantage in the early years of this century, allowing them to intercept the communications of terrorists who didn't realize the extent of America's surveillance capabilities. But regardless, that advantage is now gone. For the foreseeable future, terrorists are going to assume that the U.S. government is monitoring all forms of electronic communications where doing so is technically feasible.
It may be true that automated mass surveillance programs can uncover useful intelligence that couldn't be found using traditional law enforcement activities based on individualized search warrants. But even if that's true, it's not an argument for eliminating meaningful judicial oversight. Rather, it's an argument for developing new oversight methods that are more compatible with algorithmic surveillance techniques. For example, perhaps rather than requiring a warrant every time the government acquires information, the law should allow mass information collection but require judicial oversight before the government can query the database.
The key principle is that there needs to be someone monitoring each investigation to ensure the rules are being followed. That person needs to have the authority to block information requests that don't comply with the law. And that person needs the independence that only members of the judicial branch enjoy.
The broad parameters of America's domestic surveillance activities should be set by Congress, not the president. The FISA Amendments Act delegated way too much of this rule-making authority to the executive branch. But Congress can't have a meaningful debate — either about whether mass surveillance is a good idea or how to develop effective judicial oversight — while even general information about the NSA's activities is shrouded in secrecy.
The Obama administration claims that this week's news "risks important protections for the security of Americans." It's more likely the disclosures risks sparking a more robust debate about America's unaccountable surveillance state.