Politics/Law/Government

The New Constitution: Amendment VIII – oversight of covert activities

The New Constitution

Amendment VIII

No governmental entity shall conduct secret or covert proceedings absent ongoing oversight by a multi-partisan body of popularly elected officials.

Rationale

While recent revelations about the NSA’s secret domestic surveillance activities are genuinely disturbing and ought to concern every citizen, it is also true that the United States has enemies, some of them capable of inflicting significant damage and disrupting the peaceful course of our lives.

No one questions the need for vigilance, but secret governmental agencies accountable to no one are not to be tolerated by a nation that hopes to remain free. If our security arises from programs that destroy our liberty, then it’s very much like the popular saying: the terrorists have won.

It seems patently obvious that complete openness and transparency on the part of our law enforcement and intelligence agencies would be a bad idea. Secrecy is necessary to insure the efficacy of legitimate investigations and also to assure the safety of agency personnel.

The question then becomes how to provide for legitimate security and law enforcement activities without compromising the liberties of the citizenry?

Amendment VIII proposes that oversight be entrusted to an elected multi-partisan review body. The mechanism for this process may exist within the legislature, or the legislature may establish an independent commission to conduct periodic reviews. In no case shall entities like the CIA, FBI, the NSA or Homeland Security operate without oversight.

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Index: The New Constitution Series

7 replies »

  1. This is another one where I agree entirely in principle, especially with your rationale. Even though I’ve occasionally (here or elsewhere) voiced more support for something more tactical and specific, this is one where I think a broad umbrella does best.

    There’s only one catch. We “do” have oversight, and it has the taint of modern bipartisanship. Perhaps this is addressed in your phrasing and I missed it. We’ve got Dem and GOP Congresspeople who have been apprised of many things who then cry foul that “we’ve not heard anything!” when it’s politically advantageous, only to find out later that, sure as shit, they had been apprised, and ages ago, at that. Pelosi comes to mind.

    We’ve got oversight through FISA *snickerchortlecoughsplutter*

    As further cover, it’s not like FISA just falls out of the sky. Those FISA judges get appointed. It just happens that all the FISA judges we have now have been appointed by the same single individual, CJ John Roberts. It also just happens that he’s the only one that gets to appoint them. And that he gets to do it for a life term. And that there’s no confirmations required.

    Basically, this is another case where I can only hope that it’s the synergistic effect of all your proposals taken together, including greater education for the masses and significant changes to the manner in which we’re represented, that allows for oversight that makes any damned difference. For now, we have all the oversight that doesn’t matter that we can possibly tolerate.

    • When the whole doc is rolled out it will at least be clear what my working assumptions are. It’s very easy to take this in the context of our present system and assume the worst, and that’s precisely what you ought to do. But the new system does at least three things that would hopefully address your concerns. First, the two-party system is dead. Second, strengthened commitment to education and human welfare will eventually have an impact on the people being elected. And third, as will become clear later, we’re going to put a serious crimp in how certain kinds of money corrupt the system.

  2. An alternative might be to entrust the public court system with the decision. Make all documents automatically become public in N years (and make destruction a federal felony) but the government can petition a federal court to hold them as secret. Court uses a strict scrutiny standard to continue secrecy, advocates for release present arguments and can appeal a secrecy decision (no appeal on orders to release).

    • This might not be a bad way of going at it. I go back on forth on the question of accountability. On the one hand, if it’s being administered by an elected body said body is, in theory, more responsive to the people. On the other hand, that’s true now, isn’t it? And look at the mess we have. Courts are more insulated from cynical partisan manipulation, but a quick look at the Supreme Court suggests that this isn’t foolproof, either.

      So I’m really torn. At a glance, I can’t argue that my idea is necessarily better than yours.

  3. You have to define “covert” activites. See the 1991 Intelligence Act for details. Too easy to redefine something as not-covert and have the same effective end.

  4. Evan–that isn’t a bad idea. There would have to be strict limits on what could be automatically released, but those should be very, VERY rare. For instance, 1950 plans on how to build a biological or nuclear weapon, or late Cold War papers covering the identity of US agents overseas. There would have to be some hard thought into what is/is not released, but I think that should be on the shoulders of the responsible agencies to defend in front a of non-partisan neutral court. In other words, if DoE wants to protect plans to the A-bomb, they need to get an OK first.

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