Challenge for Congress and the NSA This Wednesday: Re-establishing the Rule of Law

Co-written with U.S. Army Major (Retired) Todd Pierce.

There is potentially good news about the continually unfolding revelations about the NSA's massive spying. Apparently two separate Congressional groups will be holding hearings or inquiries this Wednesday, July 31. A lot has happened since one of us (Coleen Rowley) complained that "Massive Spying on Americans Is Outrageous" shortly after the shocking disclosures but unfortunately, much of the ensuing news reporting has simply served to distract from the real issues to the personal saga of the NSA whistleblower Edward Snowden.

Reporter Glenn Greenwald, who broke the story at the Guardian explained on ABC:

"NSA officials are going to be testifying before the Senate on Wednesday, and I defy them to deny that these programs work exactly as I just said," Greenwald said.

Greenwald, who will join via video-link a separate bipartisan congressional group hearing from critics of the NSA's surveillance programs on Wednesday, called on lawmakers to push for more information about the NSA's practices.

"The real issue here is that what the NSA does is done in complete secrecy. Nobody really monitors who they are eavesdropping on," Greenwald said. "So the question of abuse is one that the Congress ought to be investigating much more aggressively."

We believe the context is all important that Congress should use in assessing whatever further bits of truth come out as well as the way forward. The "father of the Constitution" James Madison recognized that "no nation could preserve its freedom in the midst of continual war" so he and other Founders ensured that checks and balances were built into the Constitution in an effort to safeguard that precious-won freedom. But most of the checks and balances -- including reserving solely to Congress the right to declare war -- have long been ignored or subverted. We find ourselves now in what is matter-of-factly called the "long war."

Yet in his speech to the National Defense University on May 23, 2013, President Obama himself said that every war must come to an end, and that our commitment to the Constitution has weathered every war and must continue to do so. Speaking to the press on June 21, however, Obama seemingly changed his mind again: "You can't have 100 percent security and also then have 100 percent privacy and zero inconvenience," Obama said. "We're going to have to make some choices as a society. ... There are trade-offs involved."

This notion of trading liberty for security couldn't be further from the truth because constitutional rights--and the rule of law generally--constitute the strength, not the weakness of our national security. No terrorist could pose the kind of existential threat to our democracy, our freedom, and eventually to our security that is posed from those who would substitute the "law of war" for the rule of law. The massive data collection begun under the Bush administration as a kind of "Total Information Awareness," was continued and expanded under Obama. This rank invasion of privacy, reaching world-wide, affecting allies and enemies alike, has even graver implications; it strikes at the very heart of democracy and self government.

Officials have not been able to provide any valid examples of how the massive, secret collection of so much private data on innocent people of the world is helping them detect terrorism. We now know that the National Security Agency collected the data of every single one of Verizon's millions of telephone and internet subscribers. This can in no way be justified under section 215 of the PATRIOT Act as collecting business records relevant to the investigation of a suspected terrorist. Neither can it be justified under sec. 702 of the Foreign Intelligence Surveillance Amendments Act, which is designed to limit surveillance to non-U.S. persons.

President Obama's failure to execute the laws faithfully and Congress's evident nonfeasance in ensuring that its legislative intent be carried out represent not only a breach of the president's and members' oaths of office, but strikes at the founding principles of our nation. Our elected officials' acts of commission and omission have conspired to violate the Fourth Amendment's guarantee against sweeping general search warrants that ensnare whole populations. The Writs of Assistance that allowed the British to search entire towns without any particularized suspicion were a major cause of the War of Independence and the reason for the drafting of the Fourth Amendment.

These warrantless dragnets, and the collusion of the executive and legislative branches in allowing them, signify the emergence of a graver constitutional crisis than Watergate. In that earlier crisis, President Nixon believed that "if the president does it, it's not illegal," but Congress soundly rejected his claim. This time, a runaway executive branch is no longer restrained by Congress, which has either ignored executive branch violations or retroactively legalized them.

The way forward is clear: Congress must finally begin to exercise its Article I constitutional powers and rein in executive branch lawbreaking. It must amend all relevant statutes to expressly prohibit generalized "dragnet" surveillance warrants from being issued against U.S. persons; reconstitute the Foreign Intelligence Surveillance Court so that it will be a genuinely independent judicial function rather than a rubber stamp of the executive branch; ensure that, with due regard to sensitive information, past decisions of the court can be publicly released; and refer for prosecution under Title 18, United State Code, those executive branch officials who have given false testimony to Congress about the government's illegal surveillance program. It is wildly disproportionate that in the past Congress has seen fit to penalize athletes for allegedly misleading them while it now allows senior administration officials free rein to violate the law and then cover up the fact in testimony.

Congress should also establish a plan for the intelligence community with aggressive and binding mandates to reduce the number of contract personnel on a strict timetable. The outsourcing of intelligence matters to private contractors reduces personal accountability, weakens congressional oversight into budgets and programs, creates a "brain-drain" of skilled government personnel, and creates a corrupt "revolving door" for senior intelligence officials.

Finally, Congress must reform the intelligence committees in both houses so as to improve oversight and better protect the civil liberties of the American people. For far too long, the intelligence committees have failed to conduct meaningful oversight over the intelligence community. We must be mindful that the very reason the committees were established in the 1970s was to curb the systemic intelligence abuses that had festered in the absence of meaningful congressional control.

The NSA's illegal surveillance program has deeply damaged the United States Government's credibility with its citizens as well as with our friends and allies around the world. Ending this abuse, calling uniformed and civilian officials who are responsible to account, and reestablishing the rule of law under the protection of our Constitution is the sole path to regaining that credibility.

Co-written by Todd E. Pierce, Major, Judge Advocate, U.S. Army (Retired); served as Defense Counsel, Office of Military Commissions, and Coleen Rowley, retired FBI Agent and former Division Legal Counsel.