Published by The Lawfare Institute
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Published by The Lawfare Institute
Bruce Schneier has responded to my earlier exchange with Edward Snowden with a challenging question: Putting aside what the Constitution currently does or does permit, wouldn't it be better if all surveillance decisions were subject to judicial review? Shouldn't we prefer philosophically an executive bound to formal review mechanisms in all coercive activities---even, say, in overseas surveillance against foreign leaders---and shouldn't we prefer it on security grounds? A bound executive is safer, after all. It's a fair question. Let me try to address it. The American presidency is a terrifying institution. And let's face it, surveillance against Vladimir Putin is one of Barack Obama's less scary authorities. Consider a much scarier one: President Obama has the authority to launch, say, a preemptive nuclear strike on Moscow---on his own, without judicial review, and without congressional involvement. The only real check on the exercise of this authority is the willingness of the military to carry out the order, and don't bet that it wouldn't be done. Given that Russia would respond with a nuclear attack against us, this is effectively an unreviewable power to destroy much of the world. It's a completely terrifying power to vest in a single man. And to my mind, at least, there's only one thing scarier than a presidency that has it: a president that doesn't have it. This is, for some an arresting claim. But it has a very old provenance in American political thought, and it has prevailed in American life for good reasons. It goes back at least to Alexander Hamilton, who was the most eloquent and thoughtful theoretician and exponent of executive authority in the Founding era and who was, shall we say, not in accord with the Schneier vision that a constrained executive is a safer one. "There is an idea," he wrote at the outset of Federalist 70, "which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government." But in Hamilton's view, "Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws; to the protection of property against those irregular and high-handed combinations which sometimes interrupt the ordinary course of justice; to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy." And for Hamilton, vesting executive authority in a single person was essential to having an energetic executive at all. "That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished." Of most relevance to Schneier's argument, Hamilton argues: "This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others. . . ." (emphasis added) We do not today live with a true Hamiltonian executive. Indeed, we have---through a variety of oversight mechanisms, legal constraints, forms of judicial review, and bureaucratizations---restrained the executive in many ways (a subject described in depth in the national security context in Jack's book, Power and Constraint: The Accountable Presidency After 9/11). But it's fair to say that we live with a somewhat toned down Hamiltonian executive. While not unitary in the sense that a lot of conservatives wish, it's unitary-ish in the sense of all being ultimately answerable to the president. And while constrained, it is still capable of acting with decisiveness and speed and (sometimes) secrecy that simply cannot be done without a vertical command structure and the ability tightly to control information. We rely on these Hamiltonian features of the executive every hour of every day in national security work, and while Bruce is certainly correct that they have security costs, they also offer security benefits. Moreover, there are costs to non-security values like liberty in eroding executive capacity as well, as Hamilton also notes. It is, after all, government to which we turn to vindicate our rights, to prosecute those who injure us, and to thwart or deter those who would harm us. Bruce's challenge---and it's a deep one---is the idea that the irreducible core of unreviewable executive authority should be less in an age of globalized technology than in an age of horse-drawn wagons. We can get surveillance orders quickly now, for example. The whole world is speeding up. Why not build more oversight mechanisms, ones that work faster and more smoothly? There's a lot of truth in this, and one can see Section 702, for example, as exactly the sort of mechanism Bruce is describing. So why not take it further, and---as he suggests---simply treat all exercises of coercive presidential powers as subject to some legal check and balance and build new mechanisms to accomplish that? It's not an idle question. Though it is one foreign to our legal system, it's not foreign to all democratic legal systems that confront major national security problems. In Israel, for example, the country's highest court has original jurisdiction over just about any challenge to any government policy brought by just about anyone, standing be damned. The former chief judge of the court once famously declared that "everything is justiciable"---and in Israel, just about everything is, in fact, justished. It's not inevitable that we draw the lines the way we have. In other words, quoting Hamilton really isn't good enough to answer Bruce's question. What if Hamilton was wrong, or if he's just out of date? Why is there still an irreducible core of inherent, unreviewable executive power, and should there be? The intelligence business takes great nimbleness and speed, and it is not---generally speaking---an arena governed by principle. Acts that are crimes in other contexts---theft, blackmail, bribery, for example---are virtues in the context of intelligence work. In the domestic context, we modify all sorts of intelligence community behavior because we recognize that the norms of international espionage activity are not consistent with day-to-day life in a democratic society. So we layer a set of regulatory, judicial, and substantive rules on top of executive authority, and we pay a big price for that in terms of the nimbleness and speed and flexibility of investigations and inquiries. Yes, there are emergency procedures in FISA that speed things up. But FISA is a dramatically more time-consuming process than is opening coverage on a non-U.S. person beyond U.S. shores. To make that latter process subject to judicial review, you'd have to balloon the judiciary and give it supervisory authority over intelligence gathering in way that's hard to imagine. You would, in fact, have to make the judiciary part of the intelligence community. And that brings me to the accountability Bruce aims to be bolstering, but which I worry that too great a congressional or judicial role in intelligence would actually undermine. The more the judiciary is folded into the process, the more Congress regulates it, the more that core executive functions are done by hybrids of the branches, the less unambiguously unaccountable the President will be when things go wrong. It was the FISA Court's fault for not issuing a warrant, he might say. It was the FISA Court's fault for being so strict that we didn't even ask for a warrant. It was Congress's fault for not fixing the law even after we identified the problem. It was Congress's fault for pushing us into a posture of risk aversion. The more accountable the executive is in the sense that Bruce means it---that is, the more checks and balances you inject on micro questions---the more you diffuse certain types of accountability on larger macro questions. When everyone's responsible, then nobody is. That's what Hamilton was worrying about when he warned of plural executives. And that argument, at least in my view, is even stronger today in an era of complex bureaucracies operating in interaction with one another, than it was when Hamilton was writing. So yes, I still think there is a role for some core of executive intelligence authority that we keep as the President's sole domain, unreviewed by the judiciary and unregulated by statute. As I said at the Cato panel that kicked off this exchange, I'm not married to the specific lines FISA has delineated, lines which left a lot to regulation under Executive Order 12333. I am sure that Congress could, both constitutionally and prudently, undertake legislation in the 12333 space. But I think there are real dangers to treating foreign intelligence as an area---like domestic policing---where we presume that more judicial oversight is better. And some of the costs may be to accountability itself.
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What was the most contentious recommendation that the Privacy and Civil Liberties Oversight Board members differed on?