President Obama lied once again when he stated at a June 7 press conference that "federal judges are overseeing the entire program throughout."
In fact, the Judiciary exercises no meaningful oversight of the Executive whatsoever. The FISA court established to oversee NSA surveillance, for example, is not allowed to judge specific cases and has only been given the right to approve the guidelines the NSA claims it is following--although the court does not know if it is in fact following them. Even more importantly, the Executive has asserted its right to withhold any information it wishes from the Judiciary, for example prosecuting individuals but not providing the court evidence of their wrongdoing on the grounds of "national security."
In response to this absence of judicial oversight, President Obama has promised simply to allow an "adversary" to argue against the NSA during a FISA court hearing. But since the Executive will continue to withhold any information it feels might harm its case on the grounds of "national security," this "reform" is meaningless.
FISA Court Head Judge Reggie Walton, a conservative who has betrayed his mandate by expanding Executive power rather than overseeing it, has revealed the heart of the problem with proper judicial oversight when he stated that, "The FISC (Federal Intelligence Surveillance Court) is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance."
There is thus clearly one key step that must be taken if the Judiciary is to be given meaningful oversight over the Executive: it must be given the capacity, knowledge and information to make an informed judgment of Executive compliance with the law.
If the FISC is to provide genuine oversight over the NSA, it must be given a vastly expanded budget that allows it to hire hundreds if not thousands of its own intelligence experts, with the proper clearances and access to information.
And where might funds for the judiciary to hire its own analysts come from? As Dana Priest and William Arkin point out in Top Secret America, hundreds of billions of dollars have been given to the NSA and other intelligence agencies to expand their activities, to the point, they say, where "its entirety, as Pentagon intelligence chief James Clapper admitted, (is) visible only to God."
The intelligence community is clearly far too large and is wasting huge amounts of money, beginning with its storing of all phone and Internet records of American citizens. There is no rational relationship between the vast amount of money it spends and its results. Ending its surveillance of Americans will be an obvious first place to cut their budgets, and a portion of the savings should spent to give both the Legislative and Judicial branches the "capacity" to evaluate Executive Branch police and intelligence activities.
Provide Strong Whistleblower Protection
Kenneth Roth, Human Rights Watch executive director, has noted that "the whistleblower protection provided to government employees who expose evidence of wrongdoing does not extend to those who disclose what is deemed national security information. Whistleblowers facing prosecution can't even defend themselves by showing that their disclosures caused no harm and promoted the public interest. Wrongdoing involving this information is supposed to be revealed only to an agency's inspector general or to the congressional intelligence committees. Yet government employees who tried to use these procedures to complain about NSA overreaching faced retaliation and even prosecution -- which might help explain why Snowden skipped these mechanisms and went directly to the media. The problem is aggravated by the government's temptation to protect information that is simply embarrassing or politically fraught rather than truly a matter of national security."
Genuine whistleblower protection would have two aspects. First, internal: ensuring that whistleblowers who do go through official channels have an independent body evaluate their charges, and provide them with full protection from punishment by superiors whose wrongdoing they have revealed.
Second, external: The Executive Branch must end its prosecution of whistleblowers who reveal classified information to the media or public; or, in those rare instances where there is a case for actual damage having been done to "national security," the whistleblower must receive a fair trial by a jury that is given access to the information in question so that it can determine to what extent national security was harmed, and that takes into account the whistleblower's motivation.
Restructure the Present System of Classification
Executive over-classification of information lies at the heart of its many threats to democracy. It classifies enormous amounts of information that could be of no conceivable use to our enemies, e.g. the equivalent of 20 million filing cabinets one agency classified in one 18-month period alone. Secrecy is by its very nature undemocratic. Executive classification of documents is also at the very heart of its threats to journalists and whistleblowers seeking to uncover Executive abuses.
Daniel Ellsberg has written an important article on how and why the Executive over-classifies information:
"One of the most experienced security authorities in the Pentagon, William F. Florence, who had drafted many of the Department of Defense regulations on classification, testified as an expert witness in Congressional hearings and in my trial that at most 5% of classified material actually satisfied the official criteria of potential relevance to national security (which he had played a major role in formulating) at the moment of original classification; and that perhaps 1/2 of 1% continued to justify protection after two or three years."