NSA spying undermines separation of powers: Column

Glenn Harlan Reynolds 2:28 p.m. EST February 10, 2014

The White House.(Photo: Susan Walsh, AP)

Most of the worry about the National Security Agency's bulk interception of telephone calls, e-mail and the like has centered around threats to privacy. And, in fact, the evidence suggests that if you've got a particularly steamy phone- or Skype-sex session going on, it just might wind up being shared by voyeuristic NSA analysts.

But most Americans figure, probably rightly, that the NSA isn't likely to be interested in their stuff. (Anyone who hacks my e-mail is automatically punished, by having to read it.) There is, however, a class of people who can't take that disinterest for granted: members of Congress and the judiciary. What they have to say is likely to be pretty interesting to anyone with a political ax to grind. And the ability of the executive branch to snoop on the phone calls of people in the other branches isn't just a threat to privacy, but a threat to the separation of powers and the Constitution.

As the Framers conceived it, our system of government is divided into three branches -- the executive, legislative and judicial -- each of which is designed to serve as a check on the others. If the president gets out of control, Congress can defund his efforts, or impeach him, and the judiciary can declare his acts unconstitutional. If Congress passes unconstitutional laws, the president can veto them, or refuse to enforce them, and the judiciary, again, can declare them invalid. If the judiciary gets carried away, the president can appoint new judges, and Congress can change the laws, or even impeach.

But if the federal government has broad domestic-spying powers, and if those are controlled by the executive branch without significant oversight, then the president has the power to snoop on political enemies, getting an advantage in countering their plans, and gathering material that can be used to blackmail or destroy them. With such power in the executive, the traditional role of the other branches as checks would be seriously undermined, and our system of government would veer toward what James Madison in The Federalist No. 47 called "the very definition of tyranny," that is, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands."

That such widespread spying power exists, of course, doesn't prove that it has actually been abused. But the temptation to make use of such a power for self-serving political ends is likely to be very great. And, given the secrecy surrounding such programs, outsiders might never know. In fact, given the compartmentalization that goes on in the intelligence world, almost everyone at the NSA might be acting properly, completely unaware that one small section is devoted to gather political intelligence. We can hope, of course, that such abuses would leak out, but they might not.

Rather than counting on leakers to protect us, we need strong structural controls that don't depend on people being heroically honest or unusually immune to political temptation, two characteristics not in oversupply among our political class. That means that the government shouldn't be able to spy on Americans without a warrant a warrant that comes from a different branch of government, and requires probable cause. The government should also have to keep a clear record of who was spied on, and why, and of exactly who had access to the information once it was gathered. We need the kind of extensive audit trails for access to information that, as the Edward Snowden experience clearly illustrates, don't currently exist.

In addition, we need civil damages with, perhaps, a waiver of governmental immunities for abuse of power here. Perhaps we should have bounties for whistleblowers, too, to help encourage wrongdoing to be aired.

Is this strong medicine? Yes. But widespread spying on Americans is a threat to constitutional government. That is a serious disease, one that demands the strongest of medicines.

Go here to see the original:
NSA spying undermines separation of powers: Column