You see the problem.
The way the United States has traditionally solved this problem is to wrap such efforts in a tight system of checks and balances. Even the most secretive programs require authorization and oversight from the courts and the Congress. The truly scary breaches have come when the executive branch tries to slip those bonds, as when President Franklin D. Roosevelt authorized wiretaps that both Congress and the Supreme Court had outlawed, or when President Richard Nixon used the intelligence services to carry out political vendettas.
Checks and balances
The Obama administration has long taken pride in enmeshing its national security efforts in that system of checks and balances. That, they feel, is where they made good on their promise to rein in the security state built by President George W. Bush. Their efforts appear to have worked, too: The revelations about the extent of the National Security Agency’s surveillance have not come as a surprise to the intelligence committees, or to the FISA courts. There are no allegations that the executive branch went rogue.
“We have all these examples where the system of checks and balances was violated,” says presidential historian Michael Beschloss. “I don’t think we’ve had evidence yet that what the administration has done is in that category.”
But few seem comforted by the checks and balances wrapped around the NSA’s activities. A recent Post/ABC News poll shows that 58 percent support the NSA’s intelligence gathering. But 65 percent support Congress holding public hearings on the program. And 48 percent — a plurality — oppose charging Edward Snowden with a crime for revealing the programs. The American people, in other words, support the NSA’s secret programs — they just don’t like the secret part.
“Here’s the honest conversation we need to have as a country,” says Tommy Vietor, who served as National Security Council spokesman for President Obama. “Human beings are running these programs and collecting the intelligence. Anything they do will be imperfect. But take the metadata. It goes into a black box. You need permission to access it. It’s overseen by Congress and the courts. If none of those checks are enough for you, we have bigger problems, because that goes to a complete lack of trust in institutions.”
But a complete lack of trust in political institutions is exactly what we have. In 1958, more than 70 percent of Americans said they trusted the government. Today, that number hovers in the mid-20s. Similarly, a January Gallup poll found that only 36 percent of Americans have faith in the presidency, and only 10 percent trust Congress.
The other problem is that Congress doesn’t quite work like Congress, and the courts don’t quite work like the courts, when it comes to exercising oversight over intelligence programs. “Traditional forms of oversight function by producing transparency,” says Michael Leitner, who served as director of the United States National Counterterrorism Center under both Bush and Obama. “You can’t have that same transparency in national security.”
Take Congress. Typically, oversight is exercised in public hearings, where legislators can call any witnesses they want. The transparency leads to accountability, as the American people and the media and interest groups and all the various other players in the political system can hear what’s going on and organize around it. But transparency is exactly what the intelligence committees must avoid.
In order to maintain the secrecy of the programs they’re learning about, they too need to operate in secret. They hear only from the government. They can’t call outside witnesses. They can’t even tell their staff what they’ve learned. Jen Hoelzer, who served as communications director to Sen. Ron Wyden, recalls the Kafkaesque experience of trying to help her boss communicate the dangers of an NSA program he couldn’t tell her about. “It’s like minesweeper,” she says. “You just have to ask questions to try to get the outlines of what they’re not telling you.”
The judicial system has also constructed a parallel, secretive structure to conduct intelligence oversight. The venue there is the Foreign Intelligence Surveillance Courts. The Chief Justice of the Supreme Court appoints 11 judges to non-renewable, seven-year terms (currently, all judges of these courts have been appointed by Chief Justice John Roberts). The proceedings are secret. The only lawyers to appear are from the government.
“These judges are not a cross section of the judiciary,” says Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. “There is no one representing the other side. There’s not even a mechanism for appeal if the courts get it wrong. And every court gets it wrong, even when they hear both sides.”
The secrecy doesn't just undermine transparency. It also undermines the independence necessary for aggressive oversight. "Like any other group that meets in secret behind closed doors with only one constituency appearing before them," says Goitein, "they’re subject to capture and bias."
Some defenders of the programs believe that more transparency is possible, and even desirable. “There is value to having some greater transparency here,” says Leiter. “You could have some greater transparency from the FISA court. It ought to be more clear what they’re working on, how many requests they’re getting, and how many they’re rejecting. I’d like to see greater transparency from the President’s Civil Liberties Oversight Board. I’d like to see it from the intelligence committees. They could talk in broader terms of the oversight they’re doing. That kind of transparency would be useful.”
But those changes are modest. They almost have to be. At a fundamental level, the tension between keeping secrets and enforcing democratic accountability can’t be resolved. Ultimately, the government has to ask the public to trust that they won’t misuse their power — a task that’s far harder today, when the public has so little confidence in the government to begin with.