In early 2008, I recommended that, "The National Security Agency (NSA) should be taken out of the Defense Department and report to the DNI." ["New Security Directions," The Washington Times, 1/21/ 2008]. This, after my series of earlier op-eds supporting the president's Terrorist Surveillance Program ["NSA in the middle," 1/19/2006; "NSA food fight on the Hill," 5/22/2006; "Not just a FISA fix," 2/20/2006, all in The Washington Times] as a necessary part of the president's constitutional powers as commander in chief.
However, in 2008, Congress choose to go the other way on the TSP issue and passed amendments to the Foreign Intelligence Surveillance Act (FISA). The amendments essentially enabled the TSP operations at NSA that are now – because of Edward Snowden's unauthorized disclosures – at the very heart of the latest privacy controversies. In addition, Congress is in the awkward position that the Snowden-outed NSA operations were probably authorized by their 2008 FISA Amendments.
Realizing this, lawmakers have already begun spinning and posturing by saying such things as: 1) they didn't realize what NSA was doing; or that 2) the NSA went beyond what was authorized in 2008 – or, even that they 3) didn't know anything about it. The latter, of course, is the now famous Nancy Pelosi response to the CIA's enhanced interrogation program during the Bush Administration. In other words, they are doing the typical Congressional bobbing and weaving that they do when things go bad for them.
The much bigger point, however, is that the NSA operations – empowered by the 2008 FISA Amendments and revealed to the media by Snowden – are the political precursor for yet another struggle between the president and Congress on the nature and extent of their respective national security powers.
Having been, at one time or another, on each side of this perennial Washington political spat, the usual resolution of these struggles is for Congress to have a bunch of hearings, pass a law and for the President to sign it – as long as it's not inconsistent with the presidential view of the extent of presidential powers! In short, everyone saves face.
However, the view in the executive department is that such legislation is mostly procedural and does not interfere with "presidential prerogatives" – because it is unconstitutional if it does.
Some classic examples:
- The War Powers Resolution (1973): All presidents since its passage have believed that it's unconstitutional; hence, they all notify Congress "consistent with" it, rather than "in accordance" with it.
- FISA itself: Since it's initial enactment (1978), Congress has believed that it is "exclusive" while all presidents, including both Bush and Obama, firmly believe they have additional plenary powers of surveillance as commander in chief.
- "Covert Actions:" Recall that, in 1990, President George H.W. Bush vetoed the first version of the "Iran-Contra" inspired law that required reporting of these defined intelligence activities to the Intelligence Committees and/or the "gang of eight." The veto was because the first version of the law required advance notifications, and thus clearly interfered with presidential prerogatives as commander in chief.
What now? It's way past time for the Congress – having tried in 2008 to address these admittedly complex issues by amending FISA – to consider moving the NSA out of the Department of Defense and into the direct chain of civilian oversight of the Director Of National Intelligence. In this context, it should be remembered that the DNI structure was itself created by the Congress over the objections of President George W. Bush and in reaction to the 9/11 Commission Report.
Such an organizational move could (but only if structured and managed carefully) increase both Congressional oversight over the NSA and public confidence in NSA operations – both very timely and highly desirable policy goals.
The bottom line issue for such a move is whether the NSA is still primarily part of the war fighting function of the United States, and therefore should remain in the Department of Defense and in the direct military chain of command. It certainly appears that those days may be over, as we have moved into a whole new threat environment to our security. Many of these new threats are external, many internal and many are combinations of the two.
In sum, NSA needs to be able to watchlist anybody in the world who is supporting terrorism – and Americans need to understand that, sadly, some of those are in fact U.S. persons. The Boston Marathon bombers are a recent example – and, while we may fret about our privacy, some among us are planning to kill innocents.
Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.
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