NSA does not view itself bound by the US constitution (or the whole executive branch as a whole) and view it as a nuisance that must be at best circumvented to do their perceived job. (To the NSA guy reading this comment - have a nice day, it is tedious)
Senators Wyden and Udall (both members of the Senate Select Intelligence Committee, and -therefore- privy to classified briefings and Q&A sessions delivered direct from intelligence agencies) frequently and loudly proclaimed:
0) We are prohibited from speaking specifically -to anyone- about what we have been told in our capacities as members of the Intelligence Committee.
1) If the rest of Congress and/or the American people were told what the Intelligence Committee was told, they would be horrified by the extent of the overreach and creative interpretation of law. [0]
2) The intelligence agencies habitually stonewalled any real inquiries by the Intelligence Committee into their activities. What the Committee got to do was listen to the agency's spiels, ask a few softball questions, and adjourn for the day.
[0] Clearly, not all members of the Committee felt this way. Mrs. Feinstein, in particular, seemed to be very pleased with the status quo. (Big surprise, right?)
Also... "prohibited"? By whom? By rules the committee itself made. That the committee can change. Federal agencies don't have the power to prevent Congress from doing a damn thing. Don't kid yourself - Congress is the problem here.
Agreed. I also note that the Intelligence Agencies aren't above lying to Congress (whether behind closed doors or in public hearings), to the DoJ, the Supreme Court, the President, or anyone else for that matter.
> Also... "prohibited"? By whom?
Uh, actually prohibited by long-standing Federal law? USC Title 18, Section 793, and Section 798 totally apply here. Congressmen are NOT immune from prosecution that stems from their disclosure of classified information that they receive firsthand.[0] What's more, the Speech or Debate clause only protects Congressmen from arrest and detention while performing their official duties. It doesn't shield Congressmen from prosecution stemming from illegal acts performed while acting as Congressmen.
So, no, Federal agencies can't prevent[1] Congressmen from revealing directly-disclosed-to-the-congressman classified information on the debate floor. But then, a Congressman can't protect himself from prosecution, fines, and jail time after the big reveal.
[0] Remember that the Pentagon Papers were sent to a Congressman by a newspaper. Generally speaking, disclosure of classified information that's in the public interest by a person who is not under an obligation to control access to said information is a protected activity, as is disclosure of classified info by the press.
[1] Though, they can directly discourage it by limiting cooperation with Committees and access to personnel. This would clearly be a roadblock, rather than a permanent obstruction, but it would probably serve as a permanent obstruction to dispassionate Congressmen.
Okay, and who makes the laws?
1) Both Congress and the Judiciary make law. Congress passes bills that become laws. The judicial system's rulings on cases form precedent which fills in the holes of (or totally perverts, depending on the case) law passed by Congress. The judicial system's part in this is part of why it's so critically important to get good rulings on edge cases.
2) You're implying that Congressmen should pass a law that places them above the law? That's an incredibly slippery slope.
3) To arg. ad. absurd.[0] your position: Congres should just pass a law that frees all Congressmen from any and all legal obligation while acting in their official capacity as Congressmen. This would obviously permit them to act in any way that they felt would best allow them to improve the health and well being of the Republic.
No. Judges do not make law. I see what you're trying to say, but making law is not their function. To the extent they engage in legislating from the bench they ought to be punished with censure and/or impeachment.
>You're implying that Congressmen should pass a law that places them above the law? That's an incredibly slippery slope.
That ship sailed long ago. Congress exempts itself from all sorts of laws. Insider trading is the one that pops into mind most prominently. And do you remember the House banking scandal? Most recently they've exempted themselves from the ACA.
The idea laws pass only when voted on by the full house and yet only a tiny subset have the data to make decisions is absurd. If that's the state of the law now they ought to change it.
>To arg. ad. absurd.[0] your position: Congress should just pass a law that frees all Congressmen from any and all legal obligation while acting in their official capacity as Congressmen.
They certainly need enough freedom to do their jobs. That's why the constitution includes the Speech and Debate clause.
We live in a system that considers both the text of a law and the Judicial precedent surrounding that law. The Judicial branch interprets law, and issues binding statements based on that interpretation multiple times per day every single day. For a recent example, search for "The state asked the court to employ a remedy in this situation" in [0] and read on until the end of the paragraph.
Notice that this remedy is something that courts are supposed to do whenever they can. Moreover, history is littered with creative interpretations of law. Wickard v. Filburn is one of the most well-known.
>The idea laws pass only when voted on by the full house and yet only a tiny subset have the data to make decisions is absurd.
Heh. You really need to spend a month or two and read all the level-headed accounts you can find of the role that staffers and lobbyists play in Congress.
I'm not sure, but I strongly suspect that when you learn how the sausage is made these days, you'll change some of your more objectionable opinions.
[0] http://popehat.com/2015/05/27/minnesota-court-rules-that-cri...
I know how laws are made, that's why I want to make sure information gets to the people who need it to make good decisions. They may ignore that information, but at least they'll have it.
Like it or not, we live with a Judicial system that considers both the text of a law and the court precedent relating to that law.
We've been living in this system since the founding of the Republic. We have always had the system that you say we shouldn't, and we will very likely continue to have it until the day that the Republic has vanished from the earth.
Honestly, you might be happier in one of those European countries that give their courts zero room for interpretation. :)
As far as illegality, what the Executive has taken to doing over the last 20 years or so is lawyer-shopping until they can get an opinion that justifies what they already decided they were going to do. Then they classify both the decision and the legal justification. No information = no debate. No debate = no oversight. Very nice and easy. Problem solved.
We need the NSA. But the structure of the legal system the operate in has been totally fucked up by the War on Terror. I don't even think most politicians understand the nature of the problem, much less are able to provide needed oversight.
There's no evidence of this. Many countries have nowhere near the intelligence capabilities of the 5 Eyes and yet seem to do just fine for themselves. In many ways, better than the USA.
I concur with venomsnake that "The difference between theory in practice is greater in practice than in theory."
And I think both you and veonomsnake are grossly underestimating the culpability of Congress in all of this.
To analogize: The US Army answers to the DoD. The DoD answers to the POTUS. This the Army and the DoD are military organizations, despite this fact.
You're mistaken.
They may get away with illegal behavior for a time, but that doesn't mean it isn't illegal.