Too Much Executive Power

Wednesday, September 12, 2007

By Tim Roemer, The South Bend Tribune

September 12, 2006

In August, President Bush pressured Congress to pass the Protect America Act, a bill that strips the Foreign Intelligence Surveillance Court of much of its independent oversight regarding wiretaps. In the same month, the Wall Street Journal reported that, on Oct. 1, the Department of Homeland Security will gain access to our intelligence spycraft for use against domestic targets.

These two actions increase executive branch power while reducing executive branch accountability. That is the wrong formula for America and it goes against the principle of checks and balances enshrined in our Constitution. When we give the executive more powerful tools, we need to give the legislative and judicial branches an equal measure of oversight. More power requires more accountability.

The administration pushed the Protect America Act by claiming that it would strengthen the intelligence community's ability to collect information on terrorists and foreign intelligence suspects. Indeed, the old Foreign Intelligence Security Act, written in 1978 before the era of cell phones and fiber optics, did not anticipate the technology of the 21st century. Clearly some FISA reform is necessary. Technology has changed in profound ways since FISA was first written, and new FISA rules must reflect this.

What has not changed since 1978, and should not change now, is the principle that FISA was grounded on -- that great power needs to be properly balanced between the branches of government. As it stands, the Protect America Act granted the Attorney General and Director of National Intelligence many of the responsibilities normally carried out by FISA judges, asking the administration to police itself -- while at the same time relaxing some protections for American citizens. The U.S. government should treat all American citizens according to American principles.

The Department of Homeland Security and the director of National Intelligence have agreed to a gradual phasing-in of DHS access to our most sophisticated intelligence spycraft. These airborne and orbiting platforms are endowed with powerful technologies. Certainly there are applications, such as border and port security, drug interdiction and wilderness patrols where these tools can be put to good use quickly. But Congress and the judiciary need to ensure Americans' privacy rights remain intact.

The following three reforms would ensure the intelligence community has access to the best tools available to address today's grave threats while providing the checks necessary to avoid a timeless temptation:

-First, Congress should immediately restore the role of Foreign Intelligence Surveillance judges. The Protect America Act relegated FISA judges to vague, post-facto duties. The administration's argument that allowing FISA judges to exercise their traditional review encumbers our intelligence agencies is feeble. FISA court review can be conducted very quickly, and was in fact able to do just that.

-Second, Congress and the president must strengthen the Privacy and Civil Liberties Oversight Board. To date, the board has been a testament to the inadequacy of self-oversight. Its weaknesses have prompted the resignation of one Democratic board member and its reports, edited by the White House, reflected only a narrow range of concerns.

Congress must now demand the creation of a minority party vice-chair and must grant it independent subpoena power. The president must then appoint credible leaders such as former attorneys general and FBI directors to ensure expertise and independence. Subsequently, the Senate will need to diligently perform its role of "advise and consent," ensuring the confirmation of strong leaders.

-Finally, Congress must continue to improve its own oversight and investigative role. In creating the Directorate of National Intelligence, Congress recognized the value of centralizing authority within the intelligence community. Yet when it comes to strengthening its own oversight, Congress has been content to remain divided, with at least four committees having jurisdiction. Last winter's creation of a House appropriations-based Select Intelligence Oversight Panel was a good step. But now Congress should go further and create either a joint House-Senate Intelligence Committee or grant the existing intelligence committees the authority to appropriate funds.

The release of the CIA's "family jewels," cataloguing decades of domestic and overseas abuses by the intelligence community, is a strong warning. And it's not just rogue agencies. Franklin Delano Roosevelt and Richard Nixon also abused the tools available to the executive in service of political ends. Executive abuse of intelligence has happened before. It can happen again. The Founding Fathers envisioned a system built on reliable checks and balances, not the honor system.

We ask much of the men and women in the intelligence community today. We ask them to risk their lives every day in the world's most dangerous places. We ask them to uncover the information that could win, lose or prevent a war. The last thing we should be asking them to do is risk is our trust and support. In the long term, that is a gamble from which all Americans stand to lose.

Tim Roemer is president of the Center for National Policy, was a member of the 9/11 Commission and served on the House Select Intelligence Oversight Committee as a member of Congress from Indiana.

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