No Comment, Six Questions — July 16, 2009, 5:31 pm

Six Questions for Jack Balkin on the Entrenchment of the National Surveillance State

Last Friday an unclassified version of a congressionally commissioned inspectors general report was released. The report looks into the surveillance programs of the Bush Administration and checks them against the requirements of federal law. Although it concluded that the unlawful surveillance was vastly broader in scope than the Bush team ever acknowledged and that the United States obtained little significant actionable intelligence from the techniques, the report drew little attention. The report and the reaction to it serve to demonstrate one point: the National Surveillance State is here to stay. I put six questions to Yale law professor Jack Balkin, a leading writer on the subject, whose new book, an edited volume entitled The Constitution in 2020, is just out.

1. Last Friday, the inspectors general of the Defense Department, the Justice Department, the CIA, the NSA, and the Office of the Director of National Intelligence released a joint report on surveillance practices authorized by the Bush Administration. You’ve pioneered the concept of the National Surveillance State, namely, a government that uses surveillance and data collection to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services. What does the IG report tell you about the development of the National Surveillance State in the United States over the last eight years, and particularly how has the “war on terror” influenced its development?

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The “war on terror” was an opportunity for expanding the National Surveillance State, but it was not really its primary cause. The expansion of surveillance programs and techniques has been going on for some time, spurred by developments in information technology and the increasingly lower cost of storing and analyzing information. War and emergencies are temporary conditions; the use of surveillance as a technique of government is here to stay, and it will be used for more and more things over time.

The central question is not whether we have programs and techniques of surveillance, data collection, and data analysis, because we will need them–both to head off threats and to deliver valuable government services. The question is how surveillance programs will be used and how the programs will be designed, what legal mechanisms we put in place to check abuses, and whether we hold people accountable for failing to abide by the law.

The IG report suggests that shortly after 9/11, the White House wanted to know how it could use existing surveillance technologies in ways that the law forbids. It could have gone to Congress for additional authority while it was pushing for the Patriot Act, but it chose not to do so. Instead, the White House got a single Justice Department official, John Yoo, to tell it that what it was doing was legal. It then made sure that nobody else was able to check Yoo’s work. Once other lawyers in the Office of Legal Counsel and the Justice Department discovered the arguments that Yoo was making to justify the program, they rejected them, as the IG’s report also does.

2. FISA assumes that the limitations it imposes on government surveillance operations can be enforced through a combination of criminal law sanctions and congressional oversight. But the experience of the last seven years shows that an executive prepared to exceed the legal limits imposed on its snooping certainly won’t prosecute itself. Congressional oversight has also been almost uniformly viewed as a disaster. How do we put an effective watchdog in place to assure that the legal limits, whatever they are, are actually adhered to?

Congressional oversight hasn’t worked because the executive tells only a small number of congressmen and senators what it is doing, gives them only sketchy (and occasionally self-serving) details, and doesn’t offer them the resources necessary to determine whether surveillance programs are consistent with the law, much less whether they are working. All of the expertise that you need for competent oversight is located within the executive branch: in the Justice Department and especially in the intelligence services themselves.

As the National Surveillance State grows, it becomes increasingly clear that the executive branch has to check itself. This means that Congress and the executive together have to design new structures, a new set of checks and balances within the executive branch, to prevent abuses. The executive has to create programs that watch the watchers, so to speak. It has to create audit trails of programs and create ombudsmen whose job is to police how surveillance programs are being used. Audits and ombudsmen are necessary because many of the programs can’t be revealed to the public, so there has to be somebody with high security clearance who figures out what is going on and holds people accountable when they behave inappropriately. These reforms are over and above the minimization requirements already built into FISA. If we are going to have a National Surveillance State–which looks almost certain–we need new mechanisms to prevent abuses, much as we increased civil rights and civil liberties as the federal government became more powerful after the New Deal.

3. The claims made by Republicans in defense of the Bush-era surveillance excesses seem to boil down to the proposition that this is wartime, and the executive needs to have the flexibility to do “whatever it takes” to keep the country safe. That seems to ignore the admonishment of founding fathers like James Madison, who was specifically fixed on the threat that an executive would use war-making powers to undermine the Constitution and take away the rights which were the primary object of the Revolution. But aside from that, what have we now learned about the “efficacy question”? Were these surveillance techniques in fact useful in the “war on terror”?

The IG report did not characterize these programs as very effective, much less lifesaving. The specific contributions of these programs were rather limited. These programs did not assist us in dealing with urgent threats to the national security; they did not save the day or stand between us and new terrorist attacks. The report suggested that in combination with other legal programs, the illegal operations might have been of some help in developing useful intelligence, but the problem was that so few people knew about the programs that it was hard to integrate them with existing intelligence operations. The very secrecy of the programs–required because of their illegality–hampered their effectiveness.

4. Why then was the Bush Administration able to bully and intimidate Congress into a series of amendments to FISA that progressively validated what had previously been illegal conduct, and that erased mechanisms of accountability for violation of a criminal statute? Shouldn’t Congress have tested all this against the actual utility of the program?

The Bush Administration and its allies in Congress repeatedly resorted to demagoguery, and very effective demagoguery too. They repeatedly asserted–falsely, it now turns out–that the maintenance of these programs was all that stood between us and disaster, that if the terrorists struck again the opponents of these illegal programs would have blood on their hands. All of this was false, and the people in the White House knew or should have known it. It was shameless fearmongering, but it was effective fearmongering.

The President held all the cards: the programs were secret and the results were secret. It’s very hard for congressmen and senators who know nothing of the details of these programs to really judge how effective they are. They feel that they have to take the President’s word for it; at the very least, they feel that the public won’t understand why they are being reluctant if the President says that the terrorists are poised to strike and national security is at stake.

The founders were worried about the concentration of power in a single branch; that’s why they created a system of checks and balances between different branches of government. We need to apply their insights to changed conditions. When you build up a National Surveillance State, you give the executive all the information, a justification for keeping what it is doing secret, and enormous temptations to demagogue and deceive both Congress and the public. The framers worried greatly about demagogues and military dictators like Caesar and Cromwell; that was one reason why they feared direct democracy and sought to create a republican form of government. Today we see how their fears of concentration of power might gradually be realized within a republic. To be faithful to their larger purposes, we need to create checks within the executive branch.

5. What does the IG report tell you about the role of Vice President Cheney and his chief of staff, David Addington, in this entire process?

Cheney and Addington don’t appear much in this report, but their influence was quite important to how the story developed. The key point to remember is that policy is generally developed methodically by having many different minds work over a strategy or a legal claim. In the Office of Legal Counsel, and in the Justice Department more generally, there is a tradition and a set of procedures for having legal opinions reviewed by many people to avoid mistakes and overreaching. What Cheney and Addington did was to short-circuit this process. They went straight to John Yoo, who they (correctly) believed would justify anything they wanted and shut out everyone else. (They employed a similar strategy with respect to torture and detention practices.) In essence, Cheney and Addington took the collective intelligence needed to produce wise decision making and performed a lobotomy on it. The result of that lobotomy is the work of John Yoo.

Yoo wrote his memos justifying the surveillance programs with no supervision. His memos, according to the IG report, are either incompetent or willfully self-serving. For example, Yoo argued that the Foreign Intelligence Surveillance Statute, which regulates domestic wiretapping, didn’t apply in wartime, and since we were in a war against Al Qaeda, FISA could be disregarded. The problem is that the FISA statute specifically allows the President to engage in certain operations for 15 days during wartime, which tells you that it is supposed to operate both in war and in peace. Moreover, FISA has an exclusivity clause that says it is the exclusive means for authorizing electronic surveillance practices. Yoo’s argument that FISA has no application to wartime doesn’t hold water; in fact, it’s not even a close question.

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To justify his conclusions, Yoo came up with the theory that during wartime the President’s commander-in-chief powers under Article II make congressional attempts at regulating his actions unconstitutional. This is nothing less than a theory of presidential dictatorship. It has no basis in the Constitution’s history, text, structure, or precedents. In fact, it is precisely what the framers feared and sought to prevent. When Jack Goldsmith got to OLC, he rejected Yoo’s reasoning and offered a different theory to justify the some of the programs, while recognizing that others couldn’t be justified in their current forms. I don’t agree with the arguments Goldsmith came up with in all respects, but both of us agree that Yoo’s theory is not sound.

Yoo, however is unrepentant. Today in the Wall Street Journal he lashes out at all of the inspectors general of the intelligence agencies for daring to disagree with him. He defends his actions on the grounds that FISA is “obsolete,” which suggests that he well understands that the programs were inconsistent with FISA. He repeats his claim that FISA wasn’t designed to restrict the President, even though FISA was passed at the height of the Cold War, when the national security threats we faced were at least as grave as those we face today. And he has the gall to accuse the inspectors general of the intelligence agencies of playing politics instead of following the law. It’s a pretty amazing performance.

6. What conclusions should Congress and the public draw from the experience of the “President’s Surveillance Program” and the inability of FISA to check it? How should this influence them in dealing with the Obama Administration?

I’ve criticized Cheney, Addington, and Yoo, but our focus now should be on Obama. As a result of the Bush Administration’s repeated demagoguery, Congress passed the FISA Amendments Act of 2008. That bill effectively gives the President–now President Obama–the authority to run surveillance programs similar in effect to the warrantless surveillance program that is the subject of the IG report. That is because the new FISA no longer requires individualized targets in all surveillance programs. Some programs may be “vacuum cleaner” programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no U.S. person is directly targeted.

Under the new FISA, the government can’t do exactly what the Bush program did–it can’t directly target an American who has received phone calls from someone suspected of being an Al Qaeda agent. But a program like this may no longer be necessary. New FISA authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States)–which require no individualized suspicion of anyone being a terrorist or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda. Now all of the work of excluding phone calls involving innocent Americans is done in the back end, in minimization. The new system is only as good as its minimization requirements. And those minimization requirements are largely out of the public’s view, just as the original surveillance program was. New FISA may use minimization to protect the interests of innocent Americans from abuse. Or it may not. It all depends on how the system is implemented, in ways that are currently subject to only limited oversight.

The lesson of this story is not that the Bush Administration used to do very bad things and thankfully we don’t do them anymore. The lesson is that Congress needs to require the executive branch to implement New FISA in ways that are accountable both to Congress and to a set of ombudsmen in the executive branch that Congress should now create. Thanks to a successful strategy of repeated and shameless demagoguery, President Bush has handed enormous new powers of surveillance off to his successor, and to every president thereafter, regardless of party. The question now is what, if anything, Congress plans to do to prevent future abuses.

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