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Through the Cracks: Congress and National Security

When we consider who is responsible for our security, we generally think of the executive branch of government. The Department of Homeland Security and the National Security Agency both answer to the president. But what is Congress’ role?

In addition to making laws and confirming justices, the legislative branch is supposed to watch over the executive branch to make sure it does its job, including homeland security.

With the National Security Agency tapping phones without legislative or judicial permission, many are wondering if Congress is not - at least partially - to blame.

NSA eavesdropping - what are the arguments?

Many believe that Bush’s wiretapping program violates the 1978 Foreign Intelligence Surveillance Act (FISA), which was created in the wake of surveillance abuses during the cold war and Vietnam War. The law requires the National Security Agency and the Federal Bureau of Investigation to get a warrant from a special court before placing an electronic wiretap.

The proceedings of this court, called a FISA court, are not available to the public for security reasons. Although the court rarely denies a warrant, Congress passed the law to ensure that a second branch of government was there to check executive power and prevent wiretapping abuses.

The Attorney General for the Bush administration, Alberto Gonzales, has argued that this review process is cumbersome and can take valuable time essential to "fighting a stateless, faceless enemy."

As Gonzales points out, the contemporary qualities of war are a consideration. Since FISA passed, the threat of war has changed considerably. Possible enemies have gone from over there to over here, battle is sporadic and unpredictable, and victims are usually civilians instead of soldiers. Danger can no longer be attributed to a foreign government or nation, but rather a stateless and mobile group that refuses compromise.

In defending the Bush administration surveillance program to the Senate Judiciary Committee, Gonzales explained that "the enemy is listening" and counter-surveillance is an "early warning system."

However, many committee members contended that fear was not a reason to avoid the law. Gonzales argued that the administration was not so much avoiding the 1978 law as following a different one: the 2001 congressional resolution that gave President Bush the authority "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Defenders of the Bush administration argue that the 2001 congressional directive gave President Bush the power to do as he saw fit in order to fight Al Qaeda, including issuing wiretaps without a warrant.

The issue begs the question; did President Bush act without judicial or congressional oversight?

A history of congressional oversight

Throughout the 20th Century, the Executive Branch has acted without congressional oversight on matters of national security. For example, in 1952, President Harry Truman told Commerce Secretary Charles Sawyer to seize U.S. steel mills in order to prevent a strike that would have threatened the military effort in Korea. Truman didn’t notify Congress until twelve days later.

Similarly, George W. Bush didn’t check first with the other two branches when he authorized domestic wiretapping and potentially violated FISA.

Is it someone’s fault or is it the system?

Why is Congress impotent on intelligence oversight? Aziz Huq, associate counsel for the Brennan Center for Justice at New York University, has a theory. In the May 15, 2006 issue of Legal Times, Huq asserts that the problem is twofold. For starters, the Constitution’s separation of power -- in which the three branches provide oversight for one another -- has been eroded by partisanship. He argues that party affiliation determines a legislator’s behavior toward the president, not practical reason on national security.

Second, Huq says, the intelligence machine has no structure of judicial, legislative, or executive controls. He explains that the intelligence system has evolved over time (and quickly during the Cold War) without a decided-upon framework through which the three branches could work. We see evidence of this thoughtless evolution with the NSA wiretapping scandal.

So what’s the solution?

Huq recommends that the minority party control intelligence agencies. This would take care of the partisanship problem and the lack of congressional participation in one fell swoop. What do you think of this idea? How else could Congress contribute to national security? The 9-11 Committee found that lack of congressional oversight contributed to the World Trade Center and Pentagon attacks. What should Congress be doing to make sure that 9-11 never happens again?

Your input matters

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Update Posted on: 6/3/2006