| Peter Klein |
When I testified last year before Congress on the Federal Reserve System I focused not on monetary theory and policy, but on organization theory, pointing out that an independent, largely unaccountable organization lacking any systematic oversight or governance procedures cannot possibly perform well. O&M readers have heard these complaints before. Not surprisingly, the same issues are key to understanding the debate over the NSA’s domestic surveillance procedures. The NSA’s defenders say its actions are lawful and appropriate and that there is effective oversight and governance, because Congress is briefed on the programs and an independent (albeit secret) court approves specific policies and data requests. “The government does not know,” wrote Richard Epstein and Roger Pilon, “whether you’ve called your psychiatrist, lawyer or lover. The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires.”
Thanks to Edward Snowden’s revelations, we know the first part of this claim is nonsense: a low-level contractor can request names and the content of actual calls with a few mouse clicks. (Even the collection of metadata is itself a gross violation of privacy.) More disturbing, the NSA now admits it has “three-hop” authority, meaning that it can access the calls not only of alleged terrorists, but those in contact with alleged terrorists, and those in contact with those in contact with alleged terrorists. (Watch out, Kevin Bacon!) More interesting is the claim about alleged judicial oversight. We’ve long known that the secret FISA court, which approves surveillance requests, gives the spy agencies what they want 99% of the time. To call the FISA court procedure a rubber stamp is an insult to rubber stamps. And what of the alleged Congressional participation and oversight? We heard this yesterday:
Congresswoman Zoe Lofgren revealed that an annual report provided to Congress by the government about the phone-records collection, something cited by intelligence officials as an example of their disclosures to Congress, is “less than a single page and not more than eight sentences.”
So much for transparency and detailed disclosure. (By comparison, my last annual report to my supervisor, reporting on such issues vital to national security as my academic publications, conference participation, teaching activities, etc., was 14 pages and 2,700 words.)
The bottom line is that, whatever one thinks is the appropriate scope for these surveillance programs, the US intelligence agencies operate without any de facto oversight and governance. Small groups of unelected officials and bureaucrats decide, at their sole discretion, what is and isn’t appropriate for “protecting national security.” You don’t need a course in organization theory to predict how such groups will behave.