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It was a time of foreign conflict. The nation faced unprecedented yet opaque threats. Dissident activity threatened military prospects overseas. But Congress remained inert. Loath to see crisis become catastrophe, the president stepped in, issuing an executive order that violated federal law. Congress, soundly humiliated, did nothing. Domestic surveillance by the National Security Agency circa 2006? Not quite. Executive unilateralism and congressional apathy had a long 20th century. On the morning of April 8, 1952, President Harry Truman directed Commerce Secretary Charles Sawyer to seize the nation’s steel mills to prevent a strike that would have choked production and endangered military efforts in Korea. Speaking to the nation later that night, Truman explained that our country faced a “grave danger” and his “responsibilities as president” compelled him to act. The next morning, and again 12 days later, Truman sent Congress formal notice of the seizures. But Congress did nothing even though it had considered and declined to permit this sort of seizure in 1947, when it passed the Taft-Hartley Act to narrow and regulate union protest. It was left to the Supreme Court, in the famous case Youngstown Sheet & Tube Co. v. Sawyer (1952), to resist Truman’s claim to be “Commander-in-Chief of the country, its industries, and its inhabitants.” In short, Congress’ enervated reaction to news that President George W. Bush authorized domestic surveillance without judicial warrants in violation of the 1978 Foreign Intelligence Surveillance Act ought not surprise us. Oversight by the Senate Permanent Intelligence Committee and legislative responses have been wanting recently. Proposed bills would dismantle constraints on surveillance authority — increasing the risk that intelligence resources will be misdirected — or punt the issue to the courts. Legislators are loath to address the real issue — namely, how to remedy Congress’ persistent failure of nerve on intelligence oversight. POLITICS AND BUREAUCRACY In The Federalist No. 51, James Madison famously hoped the new Constitution’s “policy of supplying, by opposite and rival interests, the defect of better motives” would lead to each branch checking the others. Today, Madison’s vision fails to work for national security as two powerful historical trends converge and erode congressional restraints on the executive. The first trend is that the separation of political parties has long superseded any separation of power. As Harvard law professor Daryl Levinson summarizes his research in 2005 in the Harvard Law Review, party affiliation seems to be a “much more important” variable than legislative branch membership in predicting the behavior of members of Congress with regard to the president. Partisan posturing has long overawed practical reason on national security. President John Adam’s Federalist Party defended the 1798 Sedition Act, which outlawed criticism of the government as a necessary defense against a “crowd of spies and inflammatory agents.” Federalist politicians then deployed the act against Republican critics. The second trend is particular to national security. Since World War II, the nation has built an enormous intelligence apparatus. But the decades-long bipartisan consensus on Cold War goals meant no framework of judicial, legislative, or even executive control ever emerged. President George Washington had a contingency fund to spend on secret diplomatic missions, sending Gouverneur Morris to London in August 1790 to test the diplomatic waters. But Washington did not have 16 agencies with an annual budget of $44 billion (the total national intelligence budget as revealed, accidentally, by a Central Intelligence Agency spokeswoman in November 2005). In 1945, President Truman disbanded the wartime Office of Strategic Services. But three months later, he re-created a national security service (called the Central Intelligence Group). After the 1947 National Security Act was passed, the intelligence community ballooned in bureaucratic heft and political power. To be sure, the New Deal had also added thousands of employees and countless new agencies to the executive branch. But Congress and the federal courts responded to the rise of the administrative state with procedural and doctrinal devices to prevent federal agencies from drifting off their statutory responsibilities. Although delegating broad powers to new agencies, Congress tried to create on the micro level a sort of separation of powers analogous to that between the federal branches of government, most importantly by the Administrative Procedure Act. No such constraining framework has developed for intelligence. The National Security Act provided only scant and inconclusive guidance to the agencies. Partly because of the bipartisan consensus on Cold War security, oversight from congressional committees was lax or nonexistent. Early CIA chief Allen Dulles handled oversight by chatting informally with Senate Armed Services Committee Chairman Richard Russell. Not until the Church Committee of 1975-76 did Congress push for oversight of the intelligence community. Revelations of massive, indiscriminate spying, especially on Americans’ First Amendment activities — including anti-Vietnam War protests, women’s rights groups, and the civil rights movement — finally prompted legislative action. The 1978 Foreign Intelligence Surveillance Act sought to shut down all off-book surveillance. Congress also enacted disclosure requirements for covert actions and intelligence activities. Most important, both houses established permanent oversight committees for intelligence. By the mid-1980s it was clear that congressional oversight was not deterring off-book, illegal activities by the intelligence agencies. The mining of Nicaraguan harbors, the Iran-Contra scandal, and revelations of fresh Federal Bureau of Investigation spying suggested that Congress still was not exercising effective control over the national security state — and that the intelligence agencies knew it. Today, with partisan motives ascendant and no administrative-law framework on the books, it is hardly surprising that Congress lacks the information or the incentive to oversee agencies’ use of national security powers. The Bush administration has also aggressively resisted congressional oversight. Signing the USA Patriot Act reauthorization in March 2006, Bush indicated that he could defy the act’s disclosure rules if he judged them inconsistent with “the performance of the executive’s constitutional duties.” And congressional oversight remains stymied. Even though the National Security Agency is bypassing FISA’s requirements, the administration, working with Senate Intelligence Committee Chairman Pat Roberts (R-Kan.), in February derailed a Senate bid to investigate the NSA’s domestic eavesdropping. Instead, Roberts arranged for a seven-senator subcommittee to be briefed at the White House and the NSA. Roberts’ solution to the absence of oversight, in other words, was to reduce even further the number of legislators receiving meaningful briefing. WRONG FIXES Proposed legislative fixes would actually compound the oversight failure. Sen. Mike DeWine (R-Ohio) has a Terrorist Surveillance Act of 2006 that authorizes “programs” of surveillance for foreign intelligence purposes if “reasonably designed” to capture communications with overseas locations. By authorizing whole “programs,” DeWine’s bill would sweep broader than the NSA’s known efforts and eliminate the Fourth Amendment’s demand for particularized evidence about a citizen. Worse, DeWine’s bill would allow spying entirely free of judicial oversight on the sole say-so of the attorney general. It would further tightly constrain legislative oversight by divesting all Senate committees of oversight jurisdiction, except for a new subcommittee. Despite its name, DeWine’s bill does not authorize spying on “terrorists” but on American citizens generally. It is a vote of blind confidence in an administration that insists repeatedly that it need not follow the law. Sen. Arlen Specter (R-Pa.) has offered a bill that errs differently. He too would allow the executive to dispense with individualized suspicion and conduct surveillance “programs” of all communications, domestic and international. A program would be lawful provided it picks up communications by even one person who “has had communication with” a foreign power or a terrorist cell. This sweeps in journalists, politicians, and scholars. A program capturing every telephone call made in the United States easily meets the Specter standard. A third bill, offered by Sen. Charles Schumer (D-N.Y.), provides the Youngstown solution: fast-tracking review of NSA surveillance to the Supreme Court. In his Youngstown concurrence, however, Justice Robert Jackson warned that courts “may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.” The DeWine, Specter, and Schumer bills, in short, do little to address the core problem: the failure of congressional oversight of the intelligence community. Meanwhile, reports that the NSA’s activities may extend beyond limited targeting of international calls to sweep in purely domestic calls and that intelligence is shared freely with political appointees suggest that oversight is needed to ensure intelligence resources are not misused. INSTITUTIONAL REFORM No magic formula or magisterial Supreme Court opinion will establish adequate institutional checks on intelligence agencies. But our federal institutions can be structured to foster congressional engagement. In particular, one good starting point to strengthen Congress’ role is a suggestion by Yale law professor Bruce Ackerman. Ackerman, in an essay on emergency measures, suggests placing the intelligence committees under the control of the party that is not holding the White House. Committee leadership now follows the majority/minority breakdown of the relevant house. But intelligence differs from other subjects where the traditional committee division between political parties may be unobjectionable. First, intelligence usually involves a bipartisan consensus about the goal of preventing terrorist attacks, even if that consensus is sometimes obscured by partisan antics. Second, the haggling over new bills, appropriations, and earmarks that characterizes other areas is generally absent from intelligence oversight. Third, the intelligence committees’ task involves looking outward at what the executive branch is doing, and not at legislative dickering. Finally, unlike other congressional overseers, intelligence committees cannot easily rely on private groups to serve as “fire alarms” to notice when agencies stray from statutorily determined functions. In sum, by virtue of their institutional position and special responsibilities, intelligence committees ought to be focused on the executive branch. They ought to be far more skeptical than other committees. Their oversight needs to be truly aggressive; now, in practice, it often becomes truly partisan. It would be better if the party not holding the White House had control of the intelligence committees. The “minority” party would thus have the use of the committees’ investigative and subpoena powers, whether or not it had a majority in the legislative chamber. Equal division of seats, as on the ethics committees, is a second-best option. Although excess partisanship is possible with a minority-controlled committee, divided government already harbors this risk. In any case, the White House has sufficient power over intelligence to hinder harassment. The nomination of Gen. Michael Hayden, the NSA’s former head, to lead the CIA — along with new reports of the NSA tracking domestic phone calls — will prove an important test of how Congress holds the executive branch to account for its use of delegated intelligence powers. Capitol Hill, of course, is remote from this kind of thinking about aggressive intelligence oversight. Fifty years’ dereliction of constitutional duty leaves deep grooves for apathy and inaction. But today’s threats to both the national security and to the Constitution itself demand deep rethinking of how we make national security policy.
Aziz Huq is associate counsel of the Brennan Center for Justice at New York University School of Law.

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