Blog — Supreme Court

July 30, 2013

What Happens When Checks and Balances Don’t Work?

By Anne Weismann

James ClapperYesterday CREW called on Attorney General Eric Holder to investigate Director of National Intelligence James R. Clapper, Jr. for conspiring and testifying falsely before Congress and conspiring and obstructing a congressional inquiry. 

The misconduct in question was false testimony Director Clapper provided the Senate Select Committee on Intelligence on March 12, 2013, when — in response to a question provided him in advance from Senator Ron Wyden (D-OR) on whether the NSA collects any type of data on Americans — Director Clapper stated unequivocally, “No, sir ... Not wittingly.” 

Thanks to Edward J. Snowden we now know that, indeed, our country very purposefully has been collecting a massive amount of private data on many millions of Americans through the PRISM program.

There are many things wrong with a high-level government official lying to Congress, but at its most basic such lies prevent Congress from doing its constitutionally assigned job of overseeing the executive branch.  To be sure, Sen. Wyden knew from classified briefings that Director Clapper was not being truthful, but the senator’s hands were tied when it came to disclosing the existence of the PRISM program.  In any event, the handful of senators with whom details of the PRISM program were shared are just a subset of those in Congress with oversight responsibility.

The courts also are supposed to act as a check on executive branch abuses, but their effectiveness also must be called into question.  When the ACLU sued on behalf of a group of lawyers, journalists, and human rights organizations who feared their international communications were being monitored by the government, the Supreme Court concluded the plaintiffs lacked standing because they could not prove they were being monitored.  In other words, they were in a true Catch 22, unable to produce the proof the Supreme Court was calling for because all the details of the program were classified.  We now know the government was, in fact, collecting data on those plaintiffs and many, many more.  Another failed check and balance.

For further proof of how the much vaunted system of checks and balances has been seriously eroded consider the Foreign Intelligence Surveillance Court (FISA). 

Created by the Foreign Intelligence Surveillance Act in 1978, and given expanded authority by the USA PATRIOT Act, the FISA court bears responsibility for considering executive branch requests for authority to conduct surveillance to obtain foreign intelligence information.  Most recently, the court has faced considerable criticism for what is perceived as rubber-stamping executive branch requests, a perception fueled in large part by the absolute secrecy that cloaks its activities.  Is it a check and balance if no one can know what it does and how it does it?

Our founding fathers had a clear vision of how our tripartite system of government should work, a vision that has endured for over two centuries.  It may be too soon to call for a drastic overhaul, but it certainly is not too soon to demand more than lip service by those charged with preserving our most precious commodity — our democracy.

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