We’re not smart enough to appreciate Barrack Obama. To cut the story short, that’s his press conference on intelligence oversight this past Friday. He proposes no changes really to current intelligence practices.
For those crediting Snowden and his odd travelogue for initiating this conversation? Here’s Obama’s ante so far: (a) a new Community website explaining that everything is constitutional; (b) a new someone called a ‘privacy officer’ at NSA with the immense power of an empty in box; (c) co-opting the Blumenthal-Udall-Wyden procedural bill proposing a special advocate to participate in select FISA proceedings to contest government representations; and (d) yet another outside group (joining President’s Intelligence Advisory Board and its Intelligence Oversight Board) to meet and do what?
A bit underwhelming. Even as opening gambit.
The Senate Democrat bill’s special advocate to represent ‘the Constitution’ in select closed FISA proceedings is small ball. Currently, the government makes its applications unopposed to the FISC. Introducing some potentially adversarial proceedings might add the possibility of considered legal debate. Possibly. It’s noteworthy that the other Senate reform bill requires FISC judges be selected from a regionally diverse background, etc.
In short, all of these steps are retroactive: designed to address specifically what went wrong 2005-2013. A classic problem of legislative reform. Fixing the past is easier than thinking from the ground up how to create a flexible structure that can adapt and address issues unforeseen today.
Speaking of structural problem, no one wants to talk about the elephant in the room. The problem isn’t FISC or even FISA. Those are symptoms.
The congressional oversight mechanism is broken. Not as it was from the mid 2000s chaos and disarray (particularly on HPSCI side). Both Committees have now recovered discipline and perhaps too much so. True, secrecy rules are important for oversight to function; we’ve long argued that since the 1980 Act passage. Yet unless there are changes that allow the full chambers to understand what it is they’re voting on when passing a law, for example, regarding FISA extensions and renewals, how can that law be considered democratically legitimate? There are ways to preserve both secrecy and democracy and we’ve lost our balance. Not to mention the problem of HPSCI/SSCI institutional capture.
Congress ultimately failed when the FISC and Administration subsequently drove a truck through the meaning of ‘relevancy’, ‘business records’, etc. in PATRIOT, etc. Yes, FISC is complicit. Yes, the Administration collectively engaged in sadly all to common linguistic evasion and outright untruthfulness. But the Congress is a co-equal branch. As much an equal as the judiciary. And shares in the failure equally.
Obama’s cynical lecture that everything was legal because his Administration jury-rigged the system with a near rubber stamp FISC to say so? Emblematic of Obama’s real historical legacy in so many different ways. When proceduralism ala Obama becomes the alpha and omega, it is the surest sign that sunlight is desperately needed.
The NSA and Alexander (as current target stand ins for the Intelligence Community) still fail to understand — after all these decades — their legitimacy is derivative. And brittle. It’s also a profound mistake to attribute their current problems to just the Manning and Snowden generations.