On matters implicating privacy, such as mass surveillance or the powers of investigatory agencies, Congress has too often failed to fulfill its responsibilities. By neglecting to examine basic facts, and deferring to executive agencies whose secrets preclude meaningful debate, the body has allowed proposals that undermine constitutional rights to repeatedly become enshrined in law. In last week’s launch of a new bipartisan Fourth Amendment Caucus in the House, however, the Constitution has gained a formidable ally.
Every Member of Congress swears an oath to “defend the Constitution against all enemies, foreign and domestic.” Yet the most significant threats to our Constitution include the powers of U.S. intelligence agencies, enabled by Congress’ faith in the agencies’ willingness to respect legal limits on their powers.
Unfortunately, Congress must share the blame for executive secrecy.
Deference to the executive branch—emboldened by Congress’ continuing failure to reform a “dysfunctional” classification system that enables executive secrecy—has left Congress in the dark on matters of fact that should inform its legislative decisions. As a predictable result, proposals that undermine our fundamental right to be free from unreasonable searches and seizures have been repeatedly enacted into law.
For instance, Congress has approved and re-authorized controversial domestic spying powers more than half a dozen times over the past 15 years. Yet even the intelligence committees have failed to gain answers to questions as basic as how many Americans are being monitored, or whether mass surveillance has ever actually helped stop a violent incident.
In addition to overlooking its responsibility to examine and investigate crucial matters of fact, Congress has also settled for holding secret hearings dominated by intelligence officials. Time after time, when domestic surveillance powers come up for re-authorization, Congress has declined to conduct public hearings, allowing executive officials to spin the facts without an opportunity for independent voices—like the whistleblowers who have repeatedly revealed fraud, waste, and abuse—to correct the record.
This is no merely hypothetical fear: intelligence agencies have been caught stating false facts under oath in response to congressional inquiries, and have even launched cyber-espionage operations to suppress a congressional investigation into their own abuses.
Unfortunately, Congress must share the blame for executive secrecy. Not only has it failed to pursue a long-overdue investigation, it has also tolerated and declined to reform a classification system so bloated and secretive that it obstructs Congress’ own ability to conduct oversight.
Instead, congressional leaders of both major political parties have played games of legislative brinksmanship.
In many cases—such as when controversial provisions of the Patriot Act were set to expire in 2005, 2006, 2009, 2011, and particularly in 2015—committee chairs waited until shortly before the re-authorization deadline, marginalized crucial public oversight, and then stoked fears about the security consequences of letting unconstitutional powers lapse. Other times, including 2014, and again earlier this year, the bipartisan establishment joined ranks to quell populists from both parties who sought to more actively check and balance executive power.
Constitutional rights are neither conservative nor liberal. They are simply American.
Yet they have been repeatedly undermined by ultimately authoritarian powers that congressional leaders from both of the major political parties have unfortunately supported.
In this context, the emergence of the bipartisan Fourth Amendment Caucus portends a potential sea change in Congress. Joined by 25 Members of the House from each of the major parties, the caucus is poised to champion privacy and help establish in Congress the consensus that already unites Americans across our various political perspectives.
During the July 13 briefing announcing the new Fourth Amendment Caucus, founding member Justin Amash (R-MI) explained its ambitions:
It’s important that we have this kind of group in Congress to stop [proposals to expand surveillance powers] before they become law, and before they have a chance to violate the rights of Americans.
From across the partisan aisle, Rep. Zoe Lofgren (D-CA) described some of the concerns that drew caucus members together:
The Fourth Amendment is fundamental to our liberty not just because it protects privacy rights, but because it’s the basis for exercising other rights. If you feel that you are being watched at all times by your government, you’re not going to feel as free to exercise your First Amendment rights of speech or assembly.
Over the next year, we look forward to the Fourth Amendment Caucus asserting its presence to influence a range of issues.
While recent attempts to prohibit strong encryption have thankfully failed, executive branch agencies continue to undermine encryption standards and devices. Members of the caucus have previously aimed to protect encryption in a measure (also aiming to end backdoor FBI searches of NSA intelligence to monitor Americans) that gained support from a remarkable bipartisan majority that the caucus may be poised to reconvene.
The Fourth Amendment Caucus may also help champion and secure a long overdue congressional investigation into the uses and continuing abuses of Section 702 of the Foreign Intelligence Surveillance Act, which enables much of the NSA Internet dragnet. Section 702 is set to expire at the end of 2017, and should at least be the focus of public hearings early in the year including voices beyond intelligence officials.
In years past, we could safely predict that Congress would sit on its hands until the last minute, and then bully Members into extending the law with vague appeals to security. With Members now organizing across the aisle to protect constitutional values, however, Congress may grow better poised to resist executive branch proposals and instead continue long-overdue surveillance reform.