Roy Blunt, the House Republican whip in the early 2000s, once described the challenge of getting Congress to act as “an exercise in herding cats.” At one memorable caucus meeting, I vividly remember him running video of grizzled cowboys doing just that. As 150 members of Congress watched the ranchers struggle to guide hundreds of drifting and distracted felines, all of us thought to ourselves, “Yes, that’s exactly what it looks like.”
That image returned to me last week when President Obama announced several initiatives for reforming America’s intelligence-gathering systems. His speech Friday was widely portrayed as an effort to straddle differences between civil libertarians and the intelligence community. To members of Congress, any failure to take a firm stance sounds like “Every man for himself!” Obama repeatedly called for congressional action — something that hasn’t seemed relevant as he unilaterally made over a dozen changes to Obamacare the past few months. Regardless, the path forward on intelligence-gathering is clear: Let the herding begin!
Let’s face it, 2013 was a bad year for American spies. Edward Snowden’s massive document release damaged many sensitive intelligence operations, but also set into motion a series of embarrassing revelations. With our government amassing records of millions of phone calls and eavesdropping on allies like Germany’s Angela Merkel, reform appeared to be the order of the day.
Obama couldn’t easily take the moral high ground here; this is, after all, the man who claimed the right to kill American citizens overseas without any judicial review. So he did what came naturally, and passed the buck to five intelligence experts for a top-to-bottom review.
In Senate testimony last week, the members of Obama’s review panel presented 46 recommendations that reform a variety of information gathering tools — not to prevent their use, but to ensure they’re used appropriately. Many suggestions were sharply debated during previous Patriot Act authorizations: tougher standards for issuing national security letters (or NSLs), an easily obtained administrative subpoena that’s prone to abuse; a tighter focus of intelligence programs on terrorism-related work; limits on gag orders that often prevent recipients from even discussing subpoenas with lawyers.
By Friday, many of these ideas had been shunted aside by the president and the press. Instead, discussion centered on whether the government should be allowed to hold masses of data like the phone logs. That’s an important question, but only one of many. Moreover, the complexity of setting up a private-sector home for storing this information could quickly become a giant yarn ball tossed among the cats, creating the kind of distraction that leads to congressional paralysis.
Meanwhile, entrenched interests within government have begun taking their own shots at the panel’s work. Law enforcement officials reject the need for intelligence courts to approve NSLs, judges on those courts oppose privacy advocates in the courtroom, and the National Security Agency would just as soon keep everything it can get its hands on. So much for recommendations 2, 5, and 28.
That leaves a divided Congress to sort through the competing attitudes if more progress is to be made. In the Senate hearing, discussion kept returning to the question of whether or not collecting all these phone records makes us safer. The panel concluded it was “not essential to preventing attacks,” but this sidesteps an essential point: Just because something makes us safer doesn’t mean it falls within the bounds of the Constitution; and just because a program is determined to be constitutional doesn’t make it right. Police cameras on every street corner and mandatory curfews would make us all safer, but is that really the world we want to live in?
The panel members understand this point, and in the end they got most of the details right. Basic oversight is no threat to effective intelligence gathering — just the opposite. Public confidence in government flows from the belief that tough standards, checks, and balances protect the levers of power from abuse, no matter who is in charge. Unfortunately, that message remains a tough sell to some in a Congress where very few members have spent time working through the details of these programs; among Republicans, many were such adamant defenders of spy agencies under President Bush that they’re now reluctant to entertain the most basic reforms.
It would be much easier to build momentum with stronger leadership from the White House, but don’t count on it. As a senator in 2005, Obama supported my effort to enact many of these reforms, then walked away from them once elected president. That damaged his credibility, and his working relationship with Congress has never been worse.
Then again, the cats don’t have to like you; they just need to get to the right place in the end.