Surveillance Oversight Should Be President-Proof, But We’re Still a Long Way Off

Publication Type: 
Other Writing
Publication Date: 
March 24, 2016

Last week, at an event co-hosted by Just Security and NYU’s Brennan Center for Justice, the NSA’s Civil Liberties and Privacy Director Rebecca Richards dropped the ball. Whenasked whether Americans should be comfortable with our current surveillance regime should someone like Donald Trump become president, she gave a milquetoast answer obviously intended to comfort the uninitiated. But in doing so, she revealed a serious deficit in our legal system.

Richards went on for a few minutes about how valuable it is to have someone like her “inside the building” having conversations about civil liberties and privacy with other NSA folks because it can be uncomfortable talking to outside overseers about the implications of what they are doing. Then she made a passing reference — before an audience of surveillance experts — to the “layers of accountability” provided by the Office of the Director of National Intelligence, the Justice Department, the Privacy and Civil Liberties Oversight Board, and Congress.


History tells us that up against a determined adversary from within the most powerful office in the world, America’s surveillance safeguards are anemic, barely bumps in the road. What about oversight has changed since 2001 that would stop another president from starting a new StellarWind?

Kurt Eichenwald’s 500 Days: Secrets and Lies in the Terror Wars tells the story of how the Bush administration initiated StellarWind, an illegal domestic spying program, by manipulating Executive Branch agencies under the president’s command and without answering to judges or Congress. Bush, unlike Nixon or Trump, wasn’t acting politically. He had the legitimate motivation of protecting the country. Nevertheless, he hid StellarWind from even national security officials in his own administration, never mind from Congress. And think how much craftier Bush would have been at hiding his steps from “oversight” if his surveillance goals were Trump’s — to identify accused terrorists’ families to be killed in retaliation or to make a short list of candidates for waterboarding.

Here’s some of what the Bush administration did. Attorney General John Ashcroft only learned about StellarWind a few days after Bush had already okayed it and the spying had begun. Then, despite the fact he was the lead law enforcement officer of the nation, Attorney General Ashcroft conducted no legal research to verify the President’s conclusion that the domestic dragnet collection was acceptable. The President had “just shoved [the order] in front of me and told me to sign it,” Ashcroft said. Ashcroft didn’t rock the boat, and he didn’t delay. He just signed it.

Read the full post at Just Security