Cleaning up the spy mess

12/27/2005

Steve Andreasen
St. Paul Pioneer Press

Posted on Tue, Dec. 27, 2005

If there were a television program on “This Week in U.S. Jurisprudence,” Attorney General Alberto Gonzales’s defense of the Bush administration’s decision to monitor U.S. citizens without a court warrant would not have made the highlights. Claiming the Justice Department’s still-secret legal justification for authorizing electronic surveillance of U.S. citizens was “not a backdoor approach,” Gonzalez revealed the administration had discussed introducing legislation explicitly permitting such domestic spying, but decided against it because it “would be difficult, if not impossible” to pass. Indeed, not a backdoor approach: more like a third-rate burglary.

The Attorney General’s claim that President Bush has the authority as Commander in Chief to direct activities that violate domestic law - in this case, the Foreign Intelligence Surveillance Act - is a rerun of arguments made by the Justice Department in an August 2002 memo claiming the president had the authority to direct torture in violation of both international agreements and U.S. statute. Now we know why the administration was careful not to repudiate this expansive claim of executive authority when - after a public uproar - it withdrew and then rewrote the August 2002 torture memo.

Just as alarming as the resurrection of the administration’s claim of absolute presidential power were the statements of members of Congress who had reportedly been briefed on the domestic spying program. In short, some members asserted they were not briefed as the administration claimed they were; some said they were briefed, but were not given enough details to evaluate the implications of the program; and some claimed they objected - either verbally or in writing - but their concerns were ignored by the administration.

What should we conclude from this? First, the process of Congressional oversight of intelligence matters has - once again - broken down. It’s simply not possible to conduct effective oversight when members of the Senate and House Intelligence Committees haven’t been briefed, haven’t been briefed in detail, or have been briefed but can’t get the administration to respond substantively to their concerns. Under any of these scenarios, something is wrong, and needs to be fixed.

There is no silver bullet here. What is needed is a renewed commitment by the Executive Branch to routinely and fully inform and consult with Congress on intelligence matters; a commitment by members of Congress to exercise their oversight function responsibly; and a consultative process that preserves our nation’s secrets. None of these conditions appears to have been met on the issue of spying on U.S. citizens.

Second, for the next three years, members of Congress are going to have to play “hard ball” with this administration to preserve Congress’ status as a co-equal branch of government. An administration that continues to claim the president has authority to circumvent domestic law - or, finds such authority in a Congressional resolution that did not explicitly address the issue at hand - needs to be “checked.” Republicans and Democrats in Congress have all taken an oath to preserve, protect and defend the Constitution of the United States, and that Constitution does not cede to the president the authority to unilaterally and secretly change a law passed by Congress.

It is encouraging that Sen. Arlen Specter, chairman of the Senate Judiciary Committee, has committed to hold hearings on the domestic spying program early next year. The Bush administration should be given the opportunity to explain itself. And if those explanations are found wanting, Congress must not hesitate to take whatever action is required to rein in the administration.

Third, there must be a more active partnership between the Executive Branch and Congress to protect civil liberties during wartime. Clearly, it is insufficient for the president to simply assert that internal safeguards to protect the rights of U.S. citizens have been put in place without the active participation of members of Congress. Such an approach has, in the past, been proved ineffective; and when exposed, it has jeopardized trust in government by the American people.

The president is right when he says there are new threats that require our government to act quickly to defend the American people; but he is wrong in acting outside the law and without the full support of Congress.

Andreasen, director for defense policy and arms control on the National Security Council from 1993 to 2001, is a national security consultant and teaches at the University of Minnesota’s Humphrey Institute of Public Affairs.