When the NSA Says "Just Trust Us," Congress Says "Whatever."

Wiretapping.jpgIn the final days of the 112th Congress, President Obama signed two last minute bills. Both were extensions of highly controversial Bush-era policies. Both were scheduled to expire January 1, 2013. And both owe their passage largely to calamitous predictions that the sky would fall if they weren’t reauthorized in time.

One of the bills, of course, dealt with the expiring Bush-era tax breaks. It was the subject of endless coverage and debate. Statistics were graphed, studies were commissioned and reporters cancelled their holiday plans to give John Boehner the Lindsey Lohan treatment. Every presidential candidate was required to say how they would handle the expiring tax breaks and nearly every member of Congress — regardless of how they voted on the final deal — put out a statement explaining their vote to their constituents.

That was not the case with the other bill, which extended the Intelligence Community’s Bush-era warrantless wiretapping authorities. There were no statistics to graph or facts to report on. Cable news wasn’t filled with surveillance experts arguing for improvements to the bill. Reporters were in no position to convey how the law was working. In fact, members of Congress, who voted on the bill, don’t even know how the law they voted on is working.

Congress passed the FISA Amendments Act of 2008 (FAA) in response torevelations that the Bush Administration was massively violating the privacy rights of law-abiding American citizens. Yet, not one of the 374 Members of Congress who voted to rubberstamp the FAA for five more years can say that he or she knows what impact the law is having on the privacy rights of law-abiding American citizens.

Last year, U.S. Senator Ron Wyden asked the Director of National Intelligence to provide an estimate of the number of law-abiding Americans who have had their phone calls and emails collected and reviewed by intelligence agents since the FAA became law. The Intelligence Community’s response was “I’m sorry. That’s ‘not reasonably possible.‘”

How do you think Congress would react if the Administration refused to provide information about the number of Americans who received unemployment benefits or loan guarantees or who knew what and when about “Fast and Furious?”

(I’m fairly sure it wouldn’t be pretty.)

Yet, when Wyden offered an amendment to require the Intelligence Community to produce a report on FAA’s “impact on the privacy of the people of the United States,” 52 senators voted against it.

U.S. Senator Jeff Merkley offered another sensible amendment to the FAA extension. Had his amendment become law, the Attorney General would have been required to:

“disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States.”


In other words, Senator Merkley thinks the Administration should let people know what it thinks laws say.

Of course, you might be wondering why such a provision is even necessary. The law isn’t a national security secret. (It’s on the Internet. Anyone can read it.) But the Intelligence Community has a history of secretly interpreting laws to give themselves powers they weren’t necessarily supposed to have. (And Congress has a history ofbeing surprised to learn that the Intelligence Community was secretly doing something it didn’t know it was doing.) So, Senator Merkley tried to add a modicum of oversight to the surveillance program. As Ronald Reagan so famously put it, “trust but verify.” Fifty-four U.S. Senators, however, voted against that amendment.

Now, I don’t blame those senators. The Intelligence Community told them that revealing any of this information could be harmful to national security and no one wants to harm national security. But how do we know that what the Intelligence Community says is being kept secret for national security reasons is really being kept secret for national security reasons? (Would we just trust the Department of Health and Human Services if it told us it had a good reason to keep its interpretations of the Affordable Care Act secret?)

Last year, when the New York Times and ACLU asked a court to overturn the Justice Department’s decision to classify legal interpretations of the Patriot Act, the Administration argued that since the Executive Branch is in charge of the classification system, only the Executive Branch can determine if a document is properly classified or not. In other words, there is no need to conduct oversight of the Executive Branch’s classification decisions because everything the Executive Branch classifies is properly classified, because the Executive Branch classified it. Got that?

When Jose Rodriguez started promoting his book defending the CIA’s use of tortureduring the Bush Administration, his publisher sent around a teaser, which included the following:

“As the shock of 9/11 faded, the support that the intelligence community enjoyed and deserved gave way to shortsighted and potentially dangerous political correctness. One by one, the tools needed to successfully fight terrorism were banished, and the men and women who volunteered to carry out our nation’s orders in combating al-Qa’ida found themselves second-guessed, hamstrung and investigated — including Rodriguez himself.”


That account is, of course, wrong. The CIA’s detention and interrogation program wasn’t banished because the shock of 9/11 had faded. The only reason that Congress and the American people didn’t object to the program sooner is that Jose Rodriguez and his colleagues in the Administration kept the program secret. In fact, as soon as the Administration’s secret legal interpretations justifying the CIA’s use of torture came to light, they were universally rejected.

And while Mr. Rodriguez believes that “hard measures” are needed to successfully fight terrorism, the FBI and scores of experts say he is wrong.

Now, Jose Rodriguez clearly thinks that he knows better than those other experts, just as he believed that becoming a nation that tortures people was the right move for the United States (regardless of what George Washington had to say about it.) But that wasn’t his decision to make. Just as it’s not the Intelligence Community’s place to decide what laws the American people should know about and which ones they shouldn’t.

As frustrating as policy debates in this country can be, one of the things that makes this country great is the fact that the American people get a say in the laws that govern them. Arguing, yelling at members of Congress and giving goofy names to policy debates are part of the perks of being an American.

Intelligence officials may very well know what’s best for the American people, but government agents — regardless of whether they work at the CIA or the USDA — don’t have the right to govern without the consent of the governed. That’s just not how we do things here. And I wish more Members of Congress would stand up for those rights.

Moreover, if the Intelligence Community doesn’t think it can convince a majority of Americans that they are doing the right thing, then maybe they shouldn’t be doing it.

Jennifer Hoelzer used to be Senator Wyden’s Deputy Chief of Staff.

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