Legal Checks on Surveillance and Modern Modes of Warfare William Howell (University of Chicago) and Mariah Zeisberg (University of Michigan)

Legal Checks on Surveillance and Modern Modes of Warfare William Howell (University of Chicago) and Mariah Zeisberg (University of Michigan) (This essay appeared in the Boston Review earlier this summer.) As the Obama era comes to a close, two antithetical visions of our government appear before us. On the first, executive power on domestic issues is not merely contained; it is subdued. A curious blend of congressional initiative and intransigence render a domesticated presidency. But we also have caught glimpses of an enormous and largely clandestine national security apparatus. Whereas the president’s ambitions for domestic policymaking are checked fiercely and ceaselessly, Congress either affirmatively protects or passively cedes vast discretionary power to the president on matters of national security. What explains this disparity, and what can be done about it? In particular, can the formal tools of policy oversight meaningfully constrain the creeping power of the surveillance state or modern ways of warfare? Most constitutional law scholars think so. Through investigations, hearings, audits, and publicity, they argue, Congress and the courts can check executive secrecy. These scholars are not entirely wrong, but their hopes are exaggerated. Traditional legal reasoning, preoccupied with political checks, has an impoverished view of the nature of modern surveillance and obscures the generative forces behind various forms of public and private resistance to state surveillance. • • • A recent argument on this score, and one that reflects many of characteristic features of current legal reasoning, can be found in University of Minnesota law professor Heidi Kitrosser’s new book Reclaiming Accountability. Kitrosser recommends that we recommit ourselves to the basic constitutional framework for limiting presidential war powers. For Kitrosser, what is at stake in the ongoing contest to limit presidential power is information. Under the guise of protecting the nation’s security, presidents have seized—just as Congress and the courts have ceded—all manner of information about the communications, plans, and travel of citizens and noncitizens alike. These developments, Kitrosser warns, are not benign. Possessing so much information, the government now wields tremendous power to violate citizens’ rights or to treat them arbitrarily. It is all the more alarming that the very means by which such power is exercised is secret: the Supreme Court’s “state secrets” doctrine means that in many cases, the government may conceal all its information, and all its information about how it acquires its information, from even the most private and protected form of judicial inquiry. We cannot hope to judge whether such risks are warranted if we don’t understand the basics of how, say, the NSA metadata program functions. So, if we want to check presidential power—and check it we must—then it is essential that we resist claims to executive secrecy. Like many constitutional law scholars before her, Kitrosser steadfastly rejects claims to presidential exclusivity in foreign affairs. She renounces notions of “presidential supremacy,” which stipulate that the president is the final arbiter of the nation’s security interests. (This line of thinking is advanced by people as wide-ranging as UC Berkeley law professor and former Bush lawyer John Yoo and former Supreme 1 Court Justice George Sutherland.) Nor does she find more congenial the “unitary executive theory”—championed especially by Dick Cheney’s legal counsel and chief of staff David Addington—which immunizes executive bureaucracy from judicial or legislative oversight. Both of these outlooks, Kitrosser argues, take a myopic and historically inaccurate view of our system of checks and balances, and both too willingly dismiss the prerequisites for democratic accountability. Taking a page from James Madison, Kitrosser advances what she calls a “substantive accountability framework,” according to which the adjoining branches of government retain the power to discover what the executive branch is doing—and to stop it, should they so choose. Some measure of presidential secrecy may be warranted, but the Congress, courts, and publics are the proper judges of that warrant’s scope. This framework proposes robust roles for monitoring and checking presidential power, and it looks skeptically upon unreviewable claims made on behalf of executive secrecy. Kitrosser does not reject arguments for secrecy out of hand. As she puts it, “the government plainly needs to keep some information secret”—if only temporarily. But where competing claims play to a draw, the advantage should always go to transparency. And while plans for military ventures may be kept secret, the details of their subsequent operations should be promptly released and subject to public scrutiny. What does all this mean in practice? Under Kitrosser’s preferred framework, leakers would receive legal protections. “Rampant” overclassification of state secrets would cease. Congress would appropriate funds for investigative bodies, strengthen its own subpoena powers, and enact more statutes that require information to be publicly accessible. Kitrosser applauds judicial scrutiny of executive claims about information and secrecy, and we expect she would applaud the recently passed the USA Freedom Act, a rollback of NSA surveillance power that requires a court order for intelligence agencies to request records, including metadata, from telephone companies. • • • We shouldn’t expect presidents to enter willingly into Kitrosser’s compact. Presidents will resist efforts to expand the involvement of Congress and the courts in information gathering. They do not want to shine a bright light on the surveillance state. Nor do they want to broaden the conversation about the kinds of information the government collects and what it does with it. And they can be expected to slip through whatever netting Congress or the courts try to lay. On this point, Jason Ross Arnold’sSecrecy in the Sunshine Era does a fantastic job of documenting the great lengths to which presidents will go in order to guard their secrets and thereby preserve their power. Like Kitrosser, Arnold has little patience for the corrosive effects of government secrecy. But whereas Kitrosser focuses on foreign policy, Arnold sees executive secrecy everywhere, and whereas Kitrosser hones in on the letter of statutory and constitutional law, Arnold sees presidents and their minions in political motion, ducking and weaving as members of Congress swat at the traces of their policy ambitions. In the aftermath of Watergate, secretive bombing campaigns in Cambodia, and the many smaller lies and deceptions of the Nixon presidency, members of Congress wanted to restore the nation’s trust in government and sought to usher in a new era of openness and responsibility. In quick succession between 1972 and 1978, Congress enacted a series of laws that established the legal basis for citizens and the press to 2 monitor their government like never before. The Federal Advisory Committee Act defined the functioning of federal advisory committees, emphasizing open meetings, public involvement, and transparency. The Privacy Act of 1974 created protections for the records of individuals held by the federal government. The 1966 Freedom of Information Act was strengthened. The 1976 Government in the Sunshine Act mandated that meetings of public agencies be open to public observation. The Presidential Records Act of 1978 mandated the protection of and public access to presidential records. For a deliberative body riven by partisan divisions and multiple veto points, these statutory accomplishments were nothing less than astounding. But presidents, Arnold reminds us, had no desire to toil in the light of day for all to see. If Congress longed for an information revolution, presidents responded with policy retrenchment. Rather than bend to Congress’s wishes, subsequent presidents— Democrats and Republicans alike—went to extraordinary lengths to conceal their activities, defy the clear intent of statutory law, suppress scientific information—in short, to circumvent, hedge, and deny at nearly every turn. “A complete history of the era,” Arnold says, “reveals episode after episode of evasive maneuvers, rule bending, clever rhetorical gambits, and outright defiance.” In their effort to work around the legal architecture of the sunshine era, presidents have not merely lurked in the shadows. Arnold catalogs a multitude of cases in which presidents, long before September 11, 2001, developed formal procedures with the express intent of evading the watchful eyes of Congress and the courts. Presidents have repeatedly asserted the authority to classify information that, by all rights, ought to be the subject of public deliberation. Through national security directives and Office of Legal Counsel memos, they have propagated secret laws that are not subject to the checks that Madison and his intellectual descendants considered so vital. Some of Arnold’s examples are well known, such as Dick Cheney’s refusal to publicly reveal the members of his 2001 energy commission, a clear violation of the Federal Advisory Committee Act. Arnold also documents the efforts of successive presidential administrations to hide the fallout of Agent Orange on Vietnam veterans. And when the Iran-Contra scandal began to reach fever pitch, henchmen in the Reagan administration shredded massive amounts of potentially damning evidence about the plot to divert funds

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