We Live Under a Total Surveillance State in America -- Can We Prevent It from Evolving into a Full-Blown Police State?
Continued from previous page
It is clearly time for the legislative representatives of people, not unelected members of the Executive, to be given the legal and moral right to declassify and make public Executive actions that they believe are illegal or immoral.
Someone must decide, after all, whether a given body of information should be kept secret from the American people. In a democracy, those who make this decision should represent the people of the nation, not gigantic, secret bureaucracies which regularly deceive the people and are accountable to no one but themselves.
D. Congress Must Have The Capacity To Genuinely Oversee Executive Agencies
Members of the Senate and House Intelligence Committees must assert their right to be treated as genuine representatives of the governed. To begin with, they must demand the right to take notes on classified material the Executive shows them and to have properly cleared staff members accompany or represent them at briefings. They must punish NSA staff members who play Orwellian word games with them, refusing to answer questions honestly unless the exact words are used as the NSA defines them, which they keep secret.
Members must also insist that they be given all information on NSA activities. At present, the NSA withholds significant information even from Senate and House Intelligence Committee members. Legislators must severely punish Executive Branch officials who continue to hide significant information from them.
Most importantly, however, Congress cannot exercise constitutionally-required oversight of Executive Branch activities unless they can independently investigate them. The Intelligence Committees, like the FISA courts (please see below), must hire significantly more staff, with the knowledge, power and mandate to oversee Executive Branch military, intelligence and police activities that potentially threaten the democratic rights of the American people.
Give the Judiciary the Capacity to Genuinely Oversee Executive Agencies Like the NSA
Meaningful judicial oversight of Executive Branch officials is the other fundamental pillar of the constitutionally-mandated system of checks and balances upon which democracy rests.
President Obama lied once again when he stated at a June 7 press conference that "federal judges are overseeing the entire program throughout.”
In fact, the Judiciary exercises no meaningful oversight of the Executive whatsoever. The FISA court established to oversee NSA surveillance, for example, is not allowed to judge specific cases and has only been given the right to approve the guidelines the NSA claims it is following—although the court does not know if it is in fact following them. Even more importantly, the Executive has asserted its right to withhold any information it wishes from the Judiciary, for example prosecuting individuals but not providing the court evidence of their wrongdoing on the grounds of "national security."
In response to this absence of judicial oversight, President Obama has promised simply to allow an "adversary" to argue against the NSA during a FISA court hearing. But since the Executive will continue to withhold any information it feels might harm its case on the grounds of "national security," this "reform" is meaningless.
FISA Court Head Judge Reggie Walton, a conservative who has betrayed his mandate by expanding Executive power rather than overseeing it, has revealed the heart of the problem with proper judicial oversight when he stated that, "The FISC (Federal Intelligence Surveillance Court) is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance."
There is thus clearly one key step that must be taken if the Judiciary is to be given meaningful oversight over the Executive: it must be given the capacity, knowledge and information to make an informed judgment of Executive compliance with the law.