Wednesday, June 12, 2013

Congress Gags Itself

I like this Kevin Drum item on NSA and oversight, but it repeats something which I think shouldn't be accepted so easily by everyone:
The traditional method of oversight is via congressional committees and the court system. But even if you assume that intelligence organizations are reporting their activities honestly, those don't really work anymore. Once a program is in place, courts end up rubber stamping virtually every application and congressional committees do pretty much the same. They simply become too accustomed to what's going on to truly pay attention. And in the case of Congress, even if some members do have issues, they're all but gagged from speaking out about them.
Congress is gagged, yes -- but because they allow themselves to be gagged. It's not inherently up to the bureaucracy or the president to set the rules about secrecy. Congress can do that. And they do, either explicitly or implicitly.

Granted: both the president and the bureaucracy can fight for the rules they prefer, too. But Congress, when they really want to do something, have plenty of tools to make it happen.

The reality here is that Members of Congress, with only a few exceptions, have been perfectly happy to gag themselves. To some extent that's because they approved of policies they didn't want publicity about, perhaps because they believe publicity would harm the consensus for those policies. To some extent it probably is because they are concerned about actual national security damage if secrets were publicized; that can be sincere even if it's wrong. But to a large extent, it's probably because pretending that they have no ability to do anything -- they can't even talk about it! -- is a very nice way of ducking responsibility.

I wrote something over the weekend saying that those upset about the NSA stories should be putting a lot of the blame on Congress, and this is yet another part of it. This is Congress's job. no one should let them off the hook with the excuse that they "have to" do what the NSA or the president says.


  1. I've been thinking about Clapper's now famous denial of an information-gathering program. Wyden obviously already knew the answer to the question (he'd been complaining about it in veiled and indirect ways for a long time), and he also knew that Clapper couldn't acknowledge it, let alone discuss it, in public. To ask the question in public and then accuse him of lying about it (even though Congress had, in fact, been informed) does not strike me as particularly honest. Wyden's problem is that he and maybe one or two others want to change the rules of secrecy, but Congress as an institution does not. That could be, as you say, because most would just as soon avoid responsibility, or it could be because they see the reasons for secrecy and can't come up with a better way of dealing with it. After all, the rules that people are complaining about now are the solution they came up with the last time this was an issue, in the 1970s. Remember the complaint about Bush's programs (or one of the complaints) was that his administration didn't follow the rules that this program does follow. The rules do have a lot of problems: sometimes as few as eight members are informed; if they disagree, they can't tell their colleagues or staff; they can't complain in public; there's no real way to know that the intelligence community is telling everything that it should and complying with all norms. Yet there is no easy solution. There are real reasons for secrecy and real reasons for not allowing every low-level employee decide what he thinks the public ought to know. That guy Rosen, from Fox, didn't just reveal the banal story that the North Koreans were likely to test another bomb, he revealed (in passing) that we knew this from a source in the North Korean government! That's what the IC flipped out about. That source has probably been hunted down by now and thrown into an interrogation room that he'll never leave alive, and it'll be a long time before another North Korean agrees to share what he knows with us. The dilemmas surrounding secrecy and intelligence matters should not be dismissed lightly.

  2. Have you seen anything about the speech and debate clause? It seems to me that Wyden and Udall wanted to reveal the existence of the program, but were afraid to--any idea what specific factors led to their worry and whether they would have been in any actual legal jeopardy, or were they just worried about political consequences?


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