The White House argues there are elaborate “checks and balances” within the executive branch to prevent abuses. That’s commendable but insufficient under a separation of powers system. Congress has been timid, and the court overseeing the NSA has granted almost every request the agency has made. There is a lack of evidence Congress and the courts provided pushback on any of the intelligence community’s initiatives to expand its power they have been reliable and relatively uncritical allies of the intelligence community.
I do not see how we get the balance between liberty and security right unless the courts and the full Congress not just certain committee members get all the information they need and step up to their constitutional responsibilities to check and balance executive power.
At a minimum, then, Congress and the courts should do the job our system counts on them to do, and commit to rigorous and sustained oversight and, in the case of Congress, to legislative action to refine the laws governing federal surveillance. Congress should clarify the Patriot Act so this massive power is clearly delineated and is relevant to an investigation into potential acts of terror. The legal foundation the government has used simply does not provide an adequate basis for the program.
Government should not be entitled secretly to get information on anyone whenever it wants without more transparency, more information, more debate, more oversight, and additional constraints.
So Congress needs to address a lot of questions. Can intrusions into the lives of Americans be minimized without harm to national security? What rights do citizens have to the information collected about them? Are the NSA’s powers to infringe on Americans’ privacy proportionate to the threat we actually face?
Sorting through these questions will be arduous and is the work of many years. Yet the public policy issues they raise are of enormous magnitude. Getting the balance right between liberty and security is a daunting job, and now is the time for the Congress and the courts to exert leadership.
Lee Hamilton is director of the Center on Congress at Indiana University Bloomington.