Aziz Huq directs the Liberty and National Security Project at the Brennan Center for Justice. He is co-author of Unchecked and Unbalanced: Presidential Power in Times of Terror, and recipient of a 2006 Carnegie Scholars Fellowship.
Consider these three recent scandals, two in the public eye, one less remarked:
The removal of eight U.S. Attorneys—and their replacement by candidates unvetted by the Senate—is achieved through a provision of the March 2006 PATRIOT Act renewal that terminates the Senate’s role in prosecutors’ replacement. Questions loom about whether inappropriate (and perhaps unconstitutional) considerations played a role in the dismissals. The president conceded earlier this week
: “[T]he Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve.” Although this isn’t quite the same as saying the president made the final call—especially in this Administration—it does raise important questions about whether partisan gamesmanship around the ’06 elections had anything to do with the firings. Quite apart from that, however, how did it come about that a bill touted as essential for national security has a provision that increases the power of the president in a way that has no relevance to national security? I’ve explained the background to that question here
, but bear in mind that there are larger questions than politicizing prosecutors at issue.
Another provision of the same PATRIOT reauthorization concerned National Security Letters, or NSLs, which had been the subject of §505 of the 2001 PATRIOT Act. (Useful background is given here
.) A recent report
from the Inspector General for the Justice Department describes how NSLs have been misused, and how the FBI has systematically failed to report or account for this. A growing bipartisan chorus is calling for systemic FBI review of NSL use. But why were NSLs ever even touted as a national security “must have” in the first place? And why couldn’t Congress parse the credibility of that claim?
The final scandal is the result of the exceptional—and by that I mean rare as well as very good—work of Glenn Fine, the Justice Department’s Inspector General. Last month, Fine issued a report
documenting inaccurate claims about the Justice Department’s reporting of terrorism prosecutions. Fine found that the Justice Department treats a case as “terrorism”-related, even if there is “no reasonable link” to terrorist activity, so long as an investigating agent at some point makes a claim that an investigation is national-security-related. The result? A large proportion of so-called “terror cases” in fact concerns mundane document fraud arrests at airports and the like. And each year Congress has been getting a wildly inflated impression of the terrorist threat in the United States.
How do these things link together? The nexus is national security, and the putative need to act with expedition and ruthlessness. The common strand tying them together is the invocation of “national security” as a magical incantation to get Congress, and by extension the American public, to bend to the executive’s every wish. Call this the “24” model of security policy: the idea being that we live in a perpetual emergency, so every request for new power from the executive branch must be granted. Right now. Without question. Dammit!
In fact, this vision rests on false predicates (see the third scandal), is of little use (see the second) and accomplishes much of narrow partisan gain (see the first).
We’ve been here before. As I and my colleague Fritz Schwarz detail in our new book, the Senate established the Church Committee because of a rising tide of evidence that the FBI, the CIA and other intelligence agencies had been engaged in the serial, and seriously partisan, abuse of intelligence powers. This history, which Fritz and I will be discussing in a series of presentations in New York, Chicago and Washington from Tuesday onward ought to be required reading for a Congress that seems to have lost its way in a thicket of executive branch claims about what must be done and what we cannot do without.
During the Cold War, executive-branch intelligence agencies such as the FBI, CIA and NSA recklessly deployed improper surveillance and disrupted political activity at home, going so far as to try to provoke Martin Luther King Jr. to commit suicide. Often this surveillance and provocation worked to the benefit of those in power, including Presidents Johnson and Nixon.
Today’s problems have striking similarities to those that faced the Church Committee. (In December 1974, it was reporter Seymour Hersh who broke news of “massive” illicit spying in the United States. Thirty years later, Hersh cast the first light on pervasive detainee abuse in U.S. detention facilities in Iraq and elsewhere. And just this month, Hersh reported in The New Yorker that the executive may be engaging in covert operations without notifying Congress, and, as much, in violation of federal law.) Just as in the late 1970s, we now need a comprehensive congressional investigation that will plumb the complex interactions between security policy and politicization that have developed over the last five years. It is not enough to react to discrete scandals, going through the cycle of surprise, anger and demands for resignation. The Church Committee showed that we can do better than this: We should gather wisdom from its example.
Consider, by way of example, how a comprehensive investigation could shed light on the U.S. Attorney purge. Contrary to what many people are saying, incidentally, the scandal here is not so much the mere fact that eight U.S. Attorneys were fired. Yes, incoming presidents generally replace most U.S. Attorneys. Yes, current law gives the president wide discretion to remove prosecutors (although perhaps it shouldn’t?). But the White House’s insistence that it was just acting in accord with existing law is beside the point. No one’s hiding the fact that eight U.S. Attorneys were fired; the real problem is rather the “why” and the “how.”
More than that, we need to know how it was that the PATRIOT Act became the vehicle for executive aggrandizement. We need to know how other powers, such as NSLs, were added without clear evidence—or any evidence—that they were in fact needed. And we need to know how the Administration, though possibly ramped up testifying from KSM through exaggerated figures for domestic counter-terrorism prosecutions, is building the fear and concern needed to sustain such policies.
It is the Church Committee that provides the best template for the kind of comprehensive reform that is needed today to uncover and cast light on all these dark questions.