- - Tuesday, January 7, 2014


Congress has an opportunity to meet its role as the most politically responsive branch of government by restoring some measure of trust to national security after the revelations about secret surveillance programs.

That trust, currently lost, stems from the perception that the people’s elected representatives are fully informed about these programs and will carry out their constitutional responsibilities to authorize by public legislation any expansions or contractions of the authorities as dictated by constitutional limits, perceived efficacy or other factors deliberately considered.

In addition to its legislative power, Congress has various tools to influence President Obama’s policies in carrying out the laws, including the power of the purse, the Senate’s power to advise on and consent to certain senior-level appointments, and the power to remove officials who commit treason, bribery or high crimes and misdemeanors. Critical to Congress‘ ability to exercise any of these powers is the receipt of truthful information from government officials and other witnesses that allows Congress to determine whether laws are working as intended, need to be changed to be more effective or to accomplish additional goals, or should be repealed. This is why calls by Rep. F. James Sensenbrenner Jr. to prosecute Director of National Intelligence James R. Clapper for lying to Congress and by Sen. Rand Paul for Mr. Clapper to resign for the same reason are based on principle, not politics.

Nowhere is Congress‘ oversight more important than in national security and intelligence matters, where so much of the government’s activity occurs, by necessity, in secret, and where the laws are written broadly. Only through timely classified reports, briefings and hearings can our elected representatives receive the information they need to carry out their constitutional responsibilities. Only if they receive truthful information in those forums can they take meaningful action or, as importantly, refrain from taking action.

More than 10 years ago, when I was the chief oversight lawyer for the House Judiciary Committee, a major concern about the USA Patriot Act’s Section 215 authority — one of the sections at issue in the National Security Agency (NSA) surveillance program — was the government’s access to library records. I took dozens of calls from groups and individuals concerned that access to library records was too intrusive. It took months to declassify the number of times the authority had been used. Agitation over the provision was significantly dampened when it turned out it had not been used at all. Or, so I was told.

Americans now rightly distrust the government to operate these programs to protect both their privacy and their security. Mr. Clapper has admitted that he told the “least untruthful” tale to a Senate committee when he testified that the NSA was not collecting data on millions of Americans. According to the NSA’s internal investigations, the agency either violated federal privacy laws or exceeded its authority thousands of times last year.

Similarly, Judge Richard J. Leon’s opinion on the constitutionality of these programs notes that in 2009, Judge Reggie B. Walton found that the “Justice Department repeatedly made misrepresentations and inaccurate statements to the judges of the [Foreign Intelligence Surveillance Court],” and that in 2011, presiding Judge John Bates similarly found that the Justice Department had “misrepresented the scope of its targeting of certain Internet communications.” None of these facts render the underlying programs unlawful, but they jeopardize their continuation if left unanswered.

The need to present false information to obtain an order from the Foreign Intelligence Surveillance Court suggests that the Justice Department thought that information that was at least relevant to an investigation could not be gathered under existing authority using truthful statements. Did the Justice Department seek such authority from Congress? Did Congress inquire about these matters? Did Congress even know about them? If Congress did know about them and inquired, the results of that inquiry should be disclosed, now that these matters are public. If Congress did not know about them, it should start that inquiry now and report the results to the public.

Each house of Congress should establish a joint task force of the Judiciary and Intelligence committees to review programs requiring judicial oversight. Then perhaps Congress will go beyond the sanctions imposed by Judge Walton (which could have been worse) and find out why representations to the court were false and what the Justice Department wanted to accomplish but could not, lawfully. If credible evidence is uncovered to merit it, referrals for criminal prosecution or disbarment might also follow.

Whether a court might rule at some later time that the NSA’s programs are constitutional or even consistent with congressional intent, Congress must work (and, importantly, appear to work) with the intelligence community to make sure it understands how the programs function and to hold the executive branch accountable. Until Congress and the public can be sure that people who abuse these programs lose their jobs and, where appropriate, face prosecution, the healthy distrust of the American people will outweigh the legitimate benefits of the programs, and any procedural reforms made by the president alone will be insufficient to instill public trust.

J. Keith Ausbrook served as chief oversight counsel for the House Judiciary Committee, chief counsel for the House Oversight and Government Reform Committee, and executive secretary of the Homeland Security Council under President George W. Bush.



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