Oversight Counterplan

FCC Neg – CFFP

Oversight Counterplan

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1NC Congressional Oversight CP Shell

Text: The United States Congress should adopt a committee-based prior review of executive amendments or interpretations of surveillance laws. The review should take placed in closed proceedings and be comprised of a committee of members that have relevant expertise and interest in surveillance issues drawn from both chambers. The committee should establish functional legislative veto over executive surveillance policies through a report and wait provision. The United States congress should instruct the Government Accountability Office to conduct on-going investigations to monitor executive surveillance practices.

The counterplan solves the case while avoiding the deference, politics, and circumvention disads – ONLY the counterplan’s congressional oversight mechanism is free from Executive Interference and doesn’t require legislation

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(William Bendix, is an assistant professor of political science at Keene State College. His research focuses on Congress, legislative deliberation, and homeland security and civil liberties policies and Paul J. Quirk, is the Phil Lind Chair in U.S. Politics and Representation at the University of British Columbia and a former research associate at the Brookings Institution. His work focuses on debate and deliberation in Congress and the mass Public, “Secrecy and negligence: How Congress lost control of domestic surveillance,” pg online @ //um-ef)

This position is appealing from the standpoint of democratic principles. But we find it too simple. There will inevitably be intelligence methods that offer major benefits for investigations and that require secrecy—even about general practices or capabilities—to be fully effective. These methods will often raise new issues of policy, or require change in existing policy; but discussing the policy openly will, in itself, reveal the methods and undermine their effectiveness. In such cases, there are only three options for Congress: forego using the new methods, despite the resulting sacrifice of investigative effectiveness; delegate the decisions about them, without legislative guidance, to the intelligence agencies; or adopt secret laws or interpretations to control their use. We believe the last option—acknowledging the need for secret policies—is the preferable course. Instead of abolishing secret laws, amendments, or interpretations, reformers should try to establish processes for making them that help minimize their frequency and provide some degree of accountability to Congress and the public.59 To those ends, we think that Congress should attempt to negotiate with the president to adopt a mutually agreeable, committee-based prior review of secret executive amendments or interpretations of surveillance laws. The review should take place in closed proceedings of a modest-sized committee whose members have relevant interest and expertise—perhaps, for example, a select committee with members drawn from the Intelligence and Judiciary panels of both chambers. Such a review could take different forms. In our view, the ideal would be a full-blown committee legislative veto—in which the committee would be required to vote to accept or reject a proposed secret interpretation before it would go into effect. However, because legislative-veto provisions operate under a constitutional cloud and are not ultimately enforceable in court, a plausible alternative is a reportand-wait provision.60 Such a provision would require theexecutive to present its intended action to the committee and wait for a specified period of time before implementing it; the measure should also oblige the committee to take up the proposal and render a (non-binding) approval or disapproval. Either way, the committee and each of its members would formally, though in secret, approve or disapprove the executive proposal.Such a review is hardly guaranteed to provide strong protection for privacy interests. But unlike merely providing briefings for members, with attendance optional, the committee review would give an identified group of legislators specific responsibility to vote up or down on proposed secret policies.With direct responsibility to render judgment, they would have strong incentives to attend to the information made available to them. They could not defer to the executive,without taking responsibility for doing so, by pleading non-involvement. Such a process, even if achievable, would be far from fully democratic. But it would provide far more accountability to Congress and the public than do secret executive interpretations reviewed simply by the FISA Court. Beyond the matter of secret policies, a second reform goal should be an institutional means to make concern for privacy a steadier, more reliable element of the policy process—so that effects on privacy are at least considered and managed, even if enhanced security is usually the top priority. To ensure that legislators have comprehensive, up-to-date analyses of surveillance programs, we believe that Congress should instruct the Government Accountability Office (GAO) to conduct ongoing investigations of the NSA and other intelligence agencies. The executive branch has a several watchdogs that monitor surveillance practices, including the Inspectors General of the NSA and Justice Department, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board (PCLOB). Although all serve important oversight functions, they have mandates that minimize privacy concerns or they are vulnerable to White House interference. The inspectors general are concerned about waste and fraud, among many other types of violations, while the Intelligence Advisory Board serves exclusively the president, making sure that executive orders and other directives are followed. Currently, only the PCLOB has a mission that considers and advocates for civil-liberties protections. Over the last year, it has produced several important reviews that weigh the surveillance benefits of eavesdropping programs against the privacy costs to Americans. However, prior to the Snowden leaks, both Presidents Bush and Obama let the Board sit empty for long periods, ensuring that it produced no oversight reports for most of its ten-year history.61 A president hostile to oversight and accountability could take similar steps to undermine the Board’s activities, especially once the Snowden scandals have faded.As the investigative wing of Congress, the GAO faces no risk of presidential intrusion or obstruction, and has both the authority and know-how to conduct comprehensive intelligence oversight.62 Atone time, in fact, it had a fully staffed office at NSA headquarters where it monitored surveillance activities on an ongoing basis.63 To be sure, resurrecting the GAO’s investigations and analysis of surveillance practices would not force policymakers or intelligence agencies to protect privacy interests. But it could ensure that legislators are made aware of the privacy considerations in all major decisions, and that at least one institutional unit seeks ways to minimize harm to those interests.

And, no solvency deficit – their ONLY solvency advocate says the only reason congressional oversight fails in the status quo is because members of congress don’t have the expertise to provide a necessary check on the nsa – the counterplan remedies that situation by mandate

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The executive and legislative mechanisms currently in place to provide oversight of the NSA are inadequate in promoting public confidence and effective national security. Ostensibly, the activities of the NSA are generally governed by the Constitution, federal law, executive orders, and regulations of the Executive Branch. 41 On the legislative side, there are twocongressional bodies—the House Permanent Select Committee on Intelligence (“HPSCI”) and the Senate Select Committee on Intelligence (“SSCI”) —that are responsible for ensuring that the NSA follows the applicable laws and regulations.42 In the executive branch, NSA oversight is vested in the President’s Intelligence Advisory Board, the Office of the Director of National Intelligence, and the Department of Justice. 43 Ostensibly, in addition to these legislative and executive oversight mechanisms, the NSA has also implemented internal controls: the Office of the Inspector General performs audits and investigations while the Office of Compliance operates to ensure that the NSA follows relevant standards.44 However, despite the appearance of effective controls, these oversight mechanisms have failed to prevent the current public crisis in confidence that the NSA is fulfilling its mission with the least possible adverse impact on the privacy of U.S. citizens. The authority of the NSA, subject to the above controls, is very limited on paper. Every intelligence activity that the NSA undertakes is purportedly constrained to the purposes of foreign intelligence and counterintelligence.45 For instance, Executive Order 12,333 provides the authority for the NSA to engage in the “collection of communications by foreign persons that occur wholly outside the United States.”46 Additionally, FISA authorizes the NSA to compel U.S. telecommunications companies to assist the agency in targeting persons who are not U.S. citizens and are reasonably believed to be located outside the United States.47 However, despite the appearances of controls, both external and internal, the “communications of U.S. persons are sometimes incidentally acquired in targeting the foreign entities.” 48 The varying types of data gathered can produce a “detailed map” of a given person’s life based on those persons with whom they are in contact.49 For instance, metadata can be used to piece together substantial information about relationships; this information includes who introduced two people, when they met, and their general communication patterns, as well as the nature and the extent of their relationships. 50 The recently disclosed collection of contact lists by the NSA has not been authorized by Congress or FISA.51 Additionally, while other collection policies that touch upon domestic communications, such as those under Section 702, have authorization, often neither lawmakers nor the public have even a rough estimate of how many communications of U.S. citizens are being acquired.52 The NSA is easily able to operate around its apparent lack of authority. One anonymous official has been quoted as saying that the NSA consciously avoids the restrictions placed on it by FISA by collecting this information from access points all over the world.53 This method means that the NSA is not required to restrict itself to collecting contact lists belonging to specified intelligence targets.54 The collection mechanism ostensibly operates under the assumption that the bulk of the data collected through the overseas access points is not data from American citizens.55 However, this is not necessarily true due to the globalized nature of the Internet as a communications infrastructure, as “data crosses boundaries even when its American owners stay at home.”56 The oversight mechanisms currently applied to this collection program require the NSA only to satisfy its own internal oversight mechanisms or to answer possible inquiries from executive branch that there is a “valid foreign intelligence target” in the data collected. 57 Moreover, congressional oversight is not effective because members of Congress have candidly said they do not know precisely the right questions to ask NSA officials. 58 Often in congressional hearings, NSA officials and other senior members of the intelligence community are evasive unless directly pressed, and the congressional committees are stymied by their lack of knowledgeregarding just which questions need asking.59 Given the realities of the NSA overstepping its authority, there is no indication to the public that the agency, even as it has been collecting data from American citizens, has been required to answer to its various oversight mechanisms in an effective manner. In response, President Obama directed the Privacy and Civil Liberties Oversight Board (“PCLOB”) to conduct two reports about NSA intelligence gathering methods. 60 The PCLOB is an independent, bipartisan agency within the executive branch tasked with reviewing and analyzing executive branch actions taken in the name of national security to determine whether appropriate consideration has been afforded to civil liberties in the development and implementation of national anti-terrorism policy.61 The recent PCLOB Report emphasizes that there is a: compelling danger . . . that the personal information collected by the government will be misused to harass, blackmail, or intimidate, or to single out for scrutiny particular individuals or groups . . . . while the danger of abuse may seem remote, given historical abuse of personal information by the government during the twentieth century, the risk is more than merely theoretical.62 The second report addressed more specifically Internet surveillance activities of the NSA—specifically those undertaken pursuant to Section 702.63 These reports demonstrate that there is a serious risk of abuse of the data collected by the NSA, as well illustrating the failings of current governmental oversight of NSA data collection policies.

2NC Overview

It’s game over on the counterplan – this is why you don’t read a version of the aff that only has one solvency advocate – the counterplan fixes the SINGLE issue identified by Healey as the reason that current congressional oversight fails – lack of educated and reliable checks on NSA ______

There is NO quantifiable solvency deficit – you should evaluate the counterplan through the lens of sufficiency – that’s best

And, this is the only oversight evidence we’ll need – GAO is the ONLY way to check corruption and ensure accountability within the executive branch – the cp builds trust and spills-over to the FISC

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(Steven, Federation of American Scientists, “GAO Oversight of NSA: A Neglected Option,” pg online @ //um-ef)

Years ago, the Government Accountability Office, the investigative arm of Congress, conducted routine audits and investigations of theNational Security Agency, such that the two agencies were in “nearly continuous contact” with one another. In the post-Snowden era, GAO could perform that oversight function once again. “NSA advises that the GAO maintains a team permanently in residence at NSA, resulting in nearly continuous contact between the two organizations,” according to a 1994 CIA memorandum for the Director of Central Intelligence. “NSA’s practice has been to cooperate with GAO audits and investigations to the extent possible in accordance with DOD regulations,” the CIA memorandum said. “This includes providing the GAO with documents requested, including CCP CBJB’s [congressional budget justification books for the consolidated cryptologic program] as long as (1) the request was in support of a valid audit or investigation and (2) the recipients of the classified material had the requisite accesses and could meet security requirements for classified data control and storage. Documents provided in the past have included CCP CBJBs.” At a 2008 Senate hearing, Sen. Daniel Akaka asked the GAO about its relationship with NSA. “I understand that GAO even had an office at the NSA,” Sen. Akaka noted. “We still actually do have space at the NSA,” replied David M. Walker, then-Comptroller General, the head of the GAO. “We just don’t use it. And the reason we don’t use it is we are not getting any requests [from Congress]. So I do not want to have people sitting out there twiddling their thumbs.” Today, the justification for restoring the type of on-site, investigative oversight of NSA that GAO could provide may be newly apparent– though no one seems to have noticed that GAO could actually provide it.The recent report of the the Review Group on Intelligence and Communications Technologies includes an appendix citing the various components of oversight of U.S. intelligence, but it does not mention GAO at all.Whether NSA bulk collection programs are ultimately extended, modified, or terminated, GAO could play a useful role as the eyes and ears of Congress at NSA. While there are several other oversight mechanisms in place, GAO would bring some unique features to the mix.NSA has a fairly robust Office of the Director of Compliance to perform internal oversight, but it answers to the NSA Director, and reflects his priorities, not necessarily those of Congress.Inspector general oversight focuses on compliance with the letter of the law, and it is probably less well-suited than GAO to consider systemic problems, performance issues and policy alternatives. (Last November, the IC Inspector General deflected a request from Senator Leahy to conduct oversight of NSA surveillance programs, citing resource limitations and other issues.) If it were directed to conduct audits and investigations on behalf of Congress, there is reason to believe the GAO could add a valuable dimension to NSA oversight. Just as a proposed third-party advocate might “thicken” the deliberations of the Foreign Intelligence Surveillance Court concerning surveillance law, so too might GAO investigators enrich the oversight of NSA programs as they are executed in practice. In Intelligence Community Directive 114, issued in 2011 following years of stagnation in GAO oversight of intelligence, DNI James Clapper instructed U.S. intelligence agencies to be responsive to GAO, at least within certain boundaries. “It is IC policy to cooperate with the Comptroller General, through the GAO, to the fullest extent possible, and to provide timely responses to requests for information,” the DNI wrote.