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The Importance of Congressional Oversight

Washington, June 17, 2013

Recent polls suggest that trust in the federal government remains near a historic low, while frustration with government remains high.  These sentiments have been fueled by the terrorist attack in Benghazi, the Justice Department’s investigation of reporters, and the IRS scandal.  Coming on the heels of these troubling headlines are leaks about national security programs aimed at preventing terrorist attacks. 

However, it would be wrong to lump all of these controversies into a single bucket.  There are important differences.

Mistrust of government in the United States is nothing new.  America's Founding Fathers were well aware of man’s fallibility and the dangers inherent in governmental power. They chose to make the national government one of limited powers, with all other powers left to the states. They also chose to divide the federal power among three branches, creating a system of checks and balances where no one branch could dominate the others.

Among the powers allocated between the branches in our Constitution are those related to national security. Article II makes the President the commander in chief of the Armed Forces. But, Article I, Section 8 gives Congress the responsibility to "declare war . . . and make rules concerning captures on land and water",  "to raise and support armies",  "to provide and maintain a navy", "to make rules for the government and regulation of the land and naval forces", a host of duties relating to the militia, and "all laws which are necessary and proper for carrying to execution the foregoing powers." 

Of course, part of our modern challenge is for the Congress, made up of two chambers and 535 individuals, to exercise those constitutional duties in an age where new domains of warfare are in space and in cyberspace and where a mere handful of committed individuals can kill thousands of innocent people.

Congress can never exercise the duties of the Commander in Chief. But Congress must fulfill its constitutional role in defending the nation even as threats can emanate from anywhere in the world and even when attacks can move at the speed of light.

Programs that must necessarily remain secret are part of what is required to keep the country safe.  That is nothing new.  Breaking Axis codes in World War II was one of the keys to Allied success.  But, secrecy does not—and should not—necessarily mean sinister things.  This is where strong, structured, and steady oversight comes into play.

The United States is unique among nations in the role Congress plays in oversight of intelligence and military activities.  As technology has developed, oversight by the legislative and, where appropriate, the judicial branches has required new mechanisms in order to keep the checks and balances designed by the Founders.  Sometimes, that oversight must occur in a classified setting because our enemies are always watching, seeking any advantage, and adjusting their tactics and strategies accordingly.

The President and his advisors point out that Congress and the FISA court were overseeing the leaked NSA programs.  I can attest that is true.  The oversight mechanisms and procedures by both Congress and the courts have evolved over time and not all Members of Congress were fully briefed.  But the intelligence committees, of which I am a member, as well as congressional leadership were briefed on how the programs operate, have a standing invitation to watch them operate, and receive regular reports, not just on the successes, but also on any mistakes that are made.

Congress passed the laws under which the programs operate and oversee how those authorities are being used. This structure works, and it serves as a check to make certain that the authority is not used for some unintended purpose and is not abused.  And when Congress disagrees with how the Administration carries out a policy or a matter of law, we have and will continue to act by changing the law, restricting funding, or giving the matter closer scrutiny through hearings and briefings.

This robust system of national security oversight stands in stark contrast to the IRS scandal where Congress has labored for years to get the truth about what was happening.  The stonewalling arrogance of the IRS is a marked departure from the non-political professionals at NSA.  The IRS scandal affirms that unchecked power can, and often will, be abused.  But it is up to Congress to develop and insist on responsible oversight mechanisms and procedures on behalf of the people we represent to prevent or uncover that abuse. In the national security arena, we are actively developing those mechanisms to make sure that our efforts are effective, but more importantly to ensure that Americans trust that their civil liberties are protected. 

Two years ago, Congress passed a law requiring quarterly reports for counterterrorism operations involving Specials Operations Forces.  Last year, we required by law regular reports on major cyber operations.   This year, the House Defense Authorization Act sets up an oversight structure for sensitive military operations, defined as lethal or capture operations outside of an active war zone.  The law would require the Administration to explain to Congress the legal authorities and targeting procedures it uses, promptly brief Congress after each such operation, and then provide quarterly overviews of all such activity.  Having that kind of defined structure written into law does not micromanage military decisions, but it does give Congress the information it needs to do its job. 

This country was founded with a healthy skepticism of government, and it is important that it remains part of our collective DNA.  The Boston bombing and the continued threats from overseas remind us, however, that more is involved than a simple balancing of privacy and security. We must continue to work to understand the threats we face.  We must continue to develop and improve the programs we have to meet those threats. And in order to protect our security and our essential freedoms, we must ensure that the founding principles of separation of powers and checks and balances are applied appropriately as threats and technology change.