Watching the NSA Watchers

by John Fund
Congress may not be capable of keeping a check on our Byzantine bureaucracy.

On Sunday, former vice president Dick Cheney addressed the dilemma many conservatives face in assessing the revelations about the National Security Agency’s data collection. On the one hand, they are suspicious of the federal government. On the other, they often mute such concerns when it comes to anything touching on national security.

Cheney captured the tension perfectly in defending the NSA’s activities. Fox News Sunday’s Chris Wallace first asked him: “What right do you think the American people have to know what the government is doing?” After a pause, Cheney said: “Well, they get to choose, they get to vote for senior officials, like the president of the United States or like the senior officials in Congress. And you have to have some trust in them.” Leaving aside the fact that less than 3 percent of Americans have ever voted for the current top four leaders of the Senate and House, Cheney’s comment certainly represents a crabbed view of public accountability by officials.

And possibly a dangerous one. Later in the interview, Wallace asked Cheney for his opinion of President Obama. “I don’t think he has credibility,” he said. “I think one of the biggest problems we have is, we have got an important point where the president of the United States ought to be able to stand up and say, ‘This is a righteous program, it is a good program, it is saving American lives, and I support it.’ And the problem is the guy has failed to be forthright and honest and credible on things like Benghazi and the IRS. So he’s got no credibility.” If we are to rely on the people elected to high office not to abuse their authority, what do we do when they do exactly that — as Cheney thinks Obama has?

And can we believe the administration and the NSA when they say the program was structured to conduct only the same kind of data mining that local law enforcement employs with phone companies when they’re investigating routine crimes? Declan McCullagh of CNET reported this weekend that Representative Jerrold Nadler, a New York Democrat, had disclosed that in a briefing last week he’d been told the NSA does not need court authorization to listen to domestic phone calls. Nadler said the contents of a phone call could be accessed “simply based on an analyst deciding that.” Nadler has since issued a clarification that muddies the waters, but he doesn’t deny his initial statement. 

This is what former House Judiciary chairman Jim Sensenbrenner, a key author of the 2001 Patriot Act, has been worrying about for a long time. He told Laura Ingraham on her radio show last Wednesday that the explanations the White House and the senior members of Congress’s Intelligence Committees are offering for the NSA surveillance activities are “a bunch of bunk.” In his view, the administration and the secret Foreign Intelligence Surveillance Act court have gone far beyond what the Patriot Act intended. Section 215, the so-called business-records part of the amended act, “was originally drafted to prevent data mining” of the type the NSA has been engaged in for years. The FISA court’s willingness to accede to administration requests is “really truly scary,” he said. They were “signing off on an unlimited dragnet.”

Sensenbrenner believes that changes to the Patriot Act must be “very specific” so that “the intelligence community knows that this goes too far.” Good luck. Back in 2010, he told FBI officials at a congressional hearing that he felt “betrayed” by the FBI’s attempts to evade the Patriot Act’s restrictions.

“Every time we tried to patch up a hole in what the FBI was doing, you figured out how to put another hole in the dike, and this little Dutch boy has only got ten fingers to put in the dike,” he told the officials.

It’s clear that congressional oversight of the government’s intelligence activities is either inadequate or flawed. Asked if he believes there has been enough oversight of the NSA, Senate majority leader Harry Reid was dismissive last week: “Enough is something that’s in the eye of the beholder.” How comforting.

While it’s true that many members of Congress are lazy or lackadaisical in finding out what’s going on, it’s not true that those who do care can get answers if they want them. All members of Congress have a top-security clearance, but lawmakers must file a formal request for access to key information, former House Intelligence chairman Pete Hoekstra (R., Mich.) told The Hill. “A significant number of those requests are typically denied,” he added. On sensitive matters, only the top-ranking Democrat and Republican on the Senate and House Intelligence Committees are briefed by intelligence officials. “All member” briefings do take place, but they often provide little information beyond what’s in the papers. “‘Fully briefed’ doesn’t mean we know what’s going on,” says Senate Appropriations chairman Barbara Mikulski of Maryland.

Of course, it’s unclear whether any serious form of congressional oversight of any part of our federal government is still possible. We have 2.84 million federal workers in 15 departments, 69 agencies, and 383 non-military sub-agencies. Private contractors increasingly function as offshoots of federal agencies; and, astonishingly, 83,500 of those private contractors’ employees have top-security clearances — including, until this month, one high-school dropout named Edward Snowden.

Jonathan Turley, a law professor at George Washington University, told a Federalist Society conference this month that the unelected, faceless bureaucracy “has become a fourth branch of government that has disrupted our constitutional framework and has a larger practical impact on the lives of citizens than all the other branches combined.” In a typical year, the number of laws that Congress passes is dwarfed by the number of new federal regulations that are issued by a factor of at least 15 to one. A citizen is ten times more likely to be tried by a federal agency than by an actual federal court, which means he’ll have far fewer legal protections.

Federal agencies are also given enormous deference in their interpretation of laws, and the Supreme Court expanded their power just last May when it ruled 5 to 4, in Arlington v. FCC, that agencies deserve deference in determining the jurisdictions of their power. In his dissent in this case, Chief Justice John Roberts quoted James Madison in the Federalist Papers No. 47 as warning that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” Roberts then pointed out that “the accumulation of these powers in the same hands is not an occasional or isolated exception to the constitutional plan; it is a central feature of modern American government.”

Benghazi. The IRS targeting of conservative groups. Secret e-mail accounts used by top federal officials — such as former EPA administrator Lisa Jackson and Labor Secretary nominee Tom Perez — to conduct official business. HHS Secretary Kathleen Sebelius’s efforts to promote Obamacare with a private slush fund solicited from companies she regulates. Subpoenas for records of journalists. The NSA revelations.

How many warning signs — emerging virtually all at once — do we need to realize that the American people have lost control of their government? Not only that, but large sectors of the government have lost any ability to provide checks and balances or even monitor the bureaucracy.

It’s easy to rail against the IRS’s targeting and the EPA’s abuses, but recent national-security revelations are also giving some conservatives pause. Jim Gilmore, the former Virginia governor who for four years chaired a congressional panel to assess terrorism threats, told me that he is “very troubled” by what he sees as a Byzantine national-security bureaucracy in which “it’s possible no one knows all that is being done in its name.” Ed Meese, Ronald Reagan’s attorney general, told me that he is “normally very supportive” of national-security concerns but that this support is contingent on trust, just as Cheney observed. “I fear we have a rogue crew running things now, and we have to be especially alert for abuses,” he said.

The administrative state has grown like Topsy under both Republican and Democratic administrations. No matter which party is in power, or comes to power in the next cycle, it’s time to rein in Leviathan’s excesses. 

With regard to to national security, the question is, Who watches the watchers? If the answer is that no one really can, then we have a country that has transformed profoundly in key ways in the last ten years. One of Osama bin Laden’s stated goals for the 9/11 attacks was to fundamentally change the way Americans live. It will be a bitter irony if our government, in its effort to protect us from al-Qaeda, makes that part of the terrorists’ plan into a permanent reality.

— John Fund is national-affairs columnist for NRO.

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