Aziz Huq: It's time to recalibrate the checks and balances between Congress and the president
[Aziz Huq is the director of the Liberty and National Security Project at the Brennan Center for Justice and an adjunct professor at the New York University School of Law. He is also the co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror.]
... During the twentieth century, the executive branch of the federal government grew in ways the Framers could not have predicted. In 1830, the federal government had roughly 11,000 employees. In 1930, it had 608,915 employees, and by 2004, it had 2,649,319. Growth in the national security state has been even more marked. During World War II, General William "Wild Bill" Donovan directed the Office of Strategic Services (OSS), the nation’s wartime intelligence service, which even at its acme never had more than 13,000 members. In November 1944, almost six months before the fall of Berlin, Donovan proposed to President Franklin D. Roosevelt that the United States create a permanent "Central Intelligence Service." Roosevelt turned him down, fearing public animosity (the plan, noted the press, had all "the earmarks of a Gestapo").
But by 2005, less than 60 years later, the federal government was spending $44 billion on its 16 permanent intelligence agencies and their combined staff of more than 100,000. Six intelligence components produce intelligence; six collect it; three collect and build it; and nine components, agencies, and sets of officials use it. At its founding, the CIA was so starved for cash that it resorted to skimming money from the Marshall Plan. Now it has a secret budget running into the billions, used not just to fund operations but also to suborn other countries’ intelligence services into evasions of federal law. Whatever the merits of its policy justifications, this transformation’s constitutional consequence–a shift in power toward the executive branch, which oversees the combined apparatus–is clear.
This growth in intelligence spending since 1946 has been largely driven by technological change, which in turn has vested the executive branch with a new kind of power. The emergence of large, private databanks holding individual financial and transactional histories, for example, has provided a new, easily accessed tool for national security agencies to pry into individuals’ lives, and an incentive to develop computational resources and data-mining algorithms to leverage that possibility. Telecommunication’s reliance on economies of scale and network effects–you couldn’t build the Internet for one person alone–gives the government unprecedented opportunities to piggy-back on private initiatives. For example, it plugs into the massive telecommunications routers that carry most of our email and telephone calls in order to vacuum out huge swathes of our correspondence. Technology, in short, adds a qualitative dimension to the quantitative change in executive branch scale.
Congress has failed to respond adequately to these monumental shifts in executive power. As Fritz Schwarz and I have discussed at length elsewhere, a Senate investigation in the mid-1970s, led by Senator Frank Church, yielded a comprehensive accounting of intelligence abuses in the Cold War era and an equally capacious list of reform recommendations. But limited political capital meant that while congressional oversight committees were strengthened and a federal statute against warrantless wiretapping was enacted, too many of the Church Committee’s necessary reforms were left on the table. Moreover, such periodic bouts of attention could not compensate for Congress’s longer, and more significant, failures with respect to national security powers. Three, in particular, merit special scrutiny....
Read entire article at Democracy: A Journal of Ideas
... During the twentieth century, the executive branch of the federal government grew in ways the Framers could not have predicted. In 1830, the federal government had roughly 11,000 employees. In 1930, it had 608,915 employees, and by 2004, it had 2,649,319. Growth in the national security state has been even more marked. During World War II, General William "Wild Bill" Donovan directed the Office of Strategic Services (OSS), the nation’s wartime intelligence service, which even at its acme never had more than 13,000 members. In November 1944, almost six months before the fall of Berlin, Donovan proposed to President Franklin D. Roosevelt that the United States create a permanent "Central Intelligence Service." Roosevelt turned him down, fearing public animosity (the plan, noted the press, had all "the earmarks of a Gestapo").
But by 2005, less than 60 years later, the federal government was spending $44 billion on its 16 permanent intelligence agencies and their combined staff of more than 100,000. Six intelligence components produce intelligence; six collect it; three collect and build it; and nine components, agencies, and sets of officials use it. At its founding, the CIA was so starved for cash that it resorted to skimming money from the Marshall Plan. Now it has a secret budget running into the billions, used not just to fund operations but also to suborn other countries’ intelligence services into evasions of federal law. Whatever the merits of its policy justifications, this transformation’s constitutional consequence–a shift in power toward the executive branch, which oversees the combined apparatus–is clear.
This growth in intelligence spending since 1946 has been largely driven by technological change, which in turn has vested the executive branch with a new kind of power. The emergence of large, private databanks holding individual financial and transactional histories, for example, has provided a new, easily accessed tool for national security agencies to pry into individuals’ lives, and an incentive to develop computational resources and data-mining algorithms to leverage that possibility. Telecommunication’s reliance on economies of scale and network effects–you couldn’t build the Internet for one person alone–gives the government unprecedented opportunities to piggy-back on private initiatives. For example, it plugs into the massive telecommunications routers that carry most of our email and telephone calls in order to vacuum out huge swathes of our correspondence. Technology, in short, adds a qualitative dimension to the quantitative change in executive branch scale.
Congress has failed to respond adequately to these monumental shifts in executive power. As Fritz Schwarz and I have discussed at length elsewhere, a Senate investigation in the mid-1970s, led by Senator Frank Church, yielded a comprehensive accounting of intelligence abuses in the Cold War era and an equally capacious list of reform recommendations. But limited political capital meant that while congressional oversight committees were strengthened and a federal statute against warrantless wiretapping was enacted, too many of the Church Committee’s necessary reforms were left on the table. Moreover, such periodic bouts of attention could not compensate for Congress’s longer, and more significant, failures with respect to national security powers. Three, in particular, merit special scrutiny....