At a CATO surveillance event last month, Ben Wittes talked about inherent presidential powers of surveillance with this hypothetical: “What should Congress have to say about the rules when Barack Obama wants to know what Vladimir Putin is talking about?” His answer was basically that Congress should have no say: “I think most people, going back to my Vladimir Putin question, would say that is actually an area of inherent presidential authority.” Edward Snowden, a surprise remote participant at the event, said the opposite, although using the courts in general rather than specifically Congress as his example. “…there is no court in the world — well, at least, no court outside Russia — who would not go, ‘This man is an agent of the foreign government. I mean, he’s the head of the government.’ Of course, they will say, ‘this guy has access to some kind of foreign intelligence value. We’ll sign the warrant for him.'”
There’s a principle here worth discussing at length. I’m not talking about the legal principle, as in what kind of court should oversee US intelligence collection. I’m not even talking about the constitutional principle, as in what are the US president’s inherent powers. I am talking about the philosophical principle: what sorts of secret unaccountable actions do we want individuals to be able to take on behalf of their country?
Put that way, I think the answer is obvious: as little as possible.
I am not a lawyer or a political scientist. I am a security technologist. And to me, the separation of powers and the checks and balances written into the US constitution are a security system. The more Barack Obama can do by himself in secret, the more power he has — and the more dangerous that is to all of us. By limiting the actions individuals and groups can take on their own, and forcing differing institutions to approve the actions of each other, the system reduces the ability for those in power to abuse their power. It holds them accountable.
We have enshrined the principle of different groups overseeing each other in many of our social and political systems. The courts issue warrants, limiting police power. Independent audit companies verify corporate balance sheets, limiting corporate power. And the executive, the legislative, and the judicial branches of government get to have their say in our laws. Sometimes accountability takes the form of prior approval, and sometimes it takes the form of ex post facto review. It’s all inefficient, of course, but it’s an inefficiency we accept because it makes us all safer.
While this is a fine guiding principle, it quickly falls apart in the practicalities of running a modern government. It’s just not possible to run a country where every action is subject to review and approval. The complexity of society, and the speed with which some decisions have to be made, can require unilateral actions. So we make allowances. Congress passes broad laws, and agencies turn them into detailed rules and procedures. The president is the commander in chief of the entire US military when it comes time to fight wars. Policeman have a lot of discretion on their own on the beat. And we only get to vote elected officials in and out of office every two, four, or six years.
The thing is, we can do better today. I’ve often said that the modern constitutional democracy is the best form of government mid-18th-century technology could produce. Because both communications and travel were difficult and expensive, it made sense for geographically proximate groups of people to choose one representative to go all the way over there and act for them over a long block of time.
Neither of these two limitations is true today. Travel is both cheap and easy, and communications are so cheap and easy as to be virtually free. Video conferencing and telepresence allow people to communicate without traveling. Surely if we were to design a democratic government today, we would come up with better institutions than the ones we are stuck with because of history.
And we can come up with more granular systems of checks and balances. So, yes, I think we would have a better government if a court had to approve all surveillance actions by the president, including those against Vladimir Putin. And today it might be possible to have a court do just that. Wittes argues that making some of these changes is impossible, given the current US constitution. He may be right, but that doesn’t mean they’re not good ideas.
Of course, the devil is always in the details. Efficiency is still a powerful counterargument. The FBI has procedures for temporarily bypassing prior approval processes if speed is essential. And granularity can still be a problem. Every bullet fired by the US military can’t be subject to judicial approval or even a military court, even though every bullet fired by a US policeman is — at least in theory — subject to judicial review. And while every domestic surveillance decision made by the police and the NSA is (also in theory) subject to judicial approval, it’s hard to know whether this can work for international NSA surveillance decisions until we try.
We are all better off now that many of the NSA’s surveillance programs have been made public and are being debated in Congress and in the media — although I had hoped for more congressional action — and many of the FISA Court’s formerly secret decisions on surveillance are being made public. But we still have a long way to go, and it shouldn’t take someone like Snowden to force at least some openness to happen.
This essay previously appeared on Lawfare.com, where Ben Wittes responded.
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