Oversight Now

Why Congress needs to go big -- and restrict the power of a runaway executive branch.

From indiscriminate drone strikes to indiscriminate surveillance, an escalating series of disclosures is shaking public confidence in the secret decision-making that has prevailed since Sept. 11, 2001. This growing demand for reappraisal of presidential power is characteristic of postwar periods. As the Vietnam War wound down in the early 1970s, newspaper headlines were also reporting a series of scandalous abuses. Congress then responded with serious efforts at fundamental reform. It reasserted its authority over presidential war-making in the 1973 War Powers Resolution, restricted the abuse of emergency powers in the 1976 National Emergencies Act, and imposed the rule of law on the intelligence services by creating a special Foreign Intelligence Surveillance Court, known as the FISA Court, in 1978.

Broadly speaking, this effort has proved to be a failure -- not least because the presidency waged successful campaigns to weaken Congress's initiatives from the very beginning. President Richard Nixon vetoed the War Powers Resolution, which required presidents to end military operations if Congress did not explicitly approve them within 60 days. Although two-thirds of both houses overrode his veto, his denunciation of the act's constitutionality opened a path for future presidents to evade the resolution's demand for timely congressional approval -- either by ignoring the 60-day restriction entirely, as in the case of Kosovo, or by blatantly misconstruing its provisions, as in Libya.

A similar fate awaited the efforts of special committees chaired by Sen. Frank Church and Rep. Otis Pike in the 1970s. They proposed an ambitious charter to regulate covert action and ban foreign assassinations. Advised by the young Dick Cheney and Donald Rumsfeld, President Gerald Ford deflected this initiative by issuing an executive order that purported to accomplish the Church-Pike objectives -- creating a special oversight board on intelligence activities and restricting their domestic impact. This left it open for future presidents to reinterpret and modify these executive directives without congressional approval. Ford's clever action took the steam out of Congress's effort, forcing the reformers to content themselves with a relatively weak system of judicial oversight imposed by FISA. Most obviously, the statute did not require the FISA Court to publish opinions that announced its views on contested matters of statutory interpretation, nor did it create a framework within which executive branch advocates for privacy, as well as national security, could effectively have their say.

We have a lot to learn from this history as the United States enters into another period of reappraisal. At least President Barack Obama does not, like Nixon and Ford, deny the existence of fundamental problems. He has not only emphasized James Madison's warning that "No nation could preserve its freedom in the midst of continual warfare." He has also called on Congress to engage in a broad-ranging reassessment of the present national security regime, including efforts to "refine and ultimately repeal" its authorization for use of military force (AUMF) in the aftermath of the 9/11 attacks.

The question is whether Congress can rise to the occasion. With libertarian Republicans and liberal Democrats providing the political energy for reform, and national security hawks providing the necessary reality checks, a more successful rerun of the 1970s may suddenly be within the range of political possibility.

But one thing should be clear. It isn't enough to pass a few narrow statutes dealing with one or another headline scandal. Congress should instead follow the precedent set by Church and Pike. It should once again establish special panels that can take a broader view than can be expected from standing committees that concentrate on defense, intelligence, and the judiciary. The challenge is to move beyond tunnel vision, and see how current war-making and surveillance practices generate systematic pathologies. The Patriot Act's broad terms were adopted and extended as an integral part of the AUMF's all-out war against al Qaeda. But today they need dramatic revision as the AUMF is refined and repealed. The same is true in redefining the proper scope of high-tech surveillance and war-making techniques.

This is especially important because it would be wrong for Congress to suppose that only some statutory fine-tuning is necessary to create a sound institutional structure. To the contrary, the earlier wave of landmark statutes contained serious flaws, and those statutes have been severely eroded by presidents of both parties over the past generation. Congress can only do better this time if it learns from past mistakes.

The special committees of the 1970s took 15 months before advancing their ambitious proposals. It may well take longer this time. Church and Pike didn't have to deal with issues of war-making authority because Congress had passed the War Powers Resolution before they began work. But only a similarly robust congressional effort holds any hope for real change over the next few years. It is not nearly enough for the standing committees to hold a few hearings in the poorly disguised hope that the present storm will subside without any significant action. The Rand Pauls and Ron Wydens must keep the pressure up for the creation of select committees that could adapt the Church-Pike vision to the 21st century.

If they fail in the short term, the need for a special effort in the next Congress should serve as a rallying cry for civil libertarians during the 2014 elections. Under pressure from the voters, the last two years of the Obama presidency need not simply repeat the "speak of reform, behave unreformed" pattern that has become all too familiar. We might witness a different scene, one in which libertarian Republicans and liberal Democrats force the leadership to create select committees that will enable Congress and the president to hammer out a new national security regime for the post-Obama era.

Partisans of the status quo will claim that a serious congressional effort will only make the problem worse, generating statutes that will give a legal imprimatur for a new cycle of executive abuse. But this downside risk will be minimized during Obama's last two years, when he will turn increasingly to the legacy he is leaving behind. The challenge instead is to press him finally to redeem his fine words by building a solid structure for the future. This will demand real statesmanship from Congress. But it is the only serious path that will allow the country to heed Madison's warning about the dangers of "continual warfare."

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We're Not Building a 'Police State'

Why Egypt’s draft NGO law is transparent, fair, and a big step forward for democracy.

Egypt is transitioning to democracy, and a well-functioning civil society is a key part of that process. To that end, President Mohamed Morsy's office has put forward a draft law that would regulate NGOs operating in Egypt. Some have argued that the legislation, which is currently being considered by the Shura Council, would repress civil society -- but a fair reading of the law shows that this is entirely baseless.

"The Muslim Brotherhood lays the foundations for a new police state by exceeding the Mubarak regime's mechanisms to suppress civil society," read the headline of a statement by the Cairo Institute for Human Rights, signed by 40 NGOs, enumerating their concerns with the draft NGO law. The presidency has carefully reviewed these concerns -- as well as similar issues raised by international NGOs such as Amnesty International and Human Rights Watch -- and found that most are either based on speculations or misinterpretation of the law, or have already been duly addressed in the final draft.

First, the statement claims that "[t]he bill seeks to subject civic entities to strict executive oversight under what is termed the "Coordinating Committee," which is given broad powers to adjudicate in all matters related to foreign funding for national organizations and the licensing and operation of foreign NGOs in Egypt." This is completely baseless for a number of reasons: The main objective of forming the coordinating committee is to consolidate all government entities with which international NGOs deal into one, so as to facilitate registration and limit any bureaucratic complications.

The law includes guarantees for transparency and doesn't grant the committee any control over organizations. The committee must provide a legally accepted reason for any decision regarding registration or funding requested by the NGOs, thus limiting its ability to interfere or impose restrictions on the NGOs for political or authoritarian motives. Moreover, the committee has no authority to stop illegal activities or funding or to dissolve an NGO without a final court order.

The draft legislation also created a clear reference point with regards to denying registration or objecting to activities or funding -- the Egyptian Constitution and our country's legal framework. Once foreign-funded NGOs are registered or obtain the general approval to receive funds they operate freely and receive funding, provided they notify the coordination committee without requiring or waiting for any other approval.

The NGOs' statement admits the draft does not include a provision stipulating that Egypt's security agencies will be present in the coordination committee. However, it assumes that the security agencies will nevertheless be part of the committee, and would therefore arbitrarily bar organizations from receiving foreign funding. In fact, the presidency has removed the provision calling for security agencies' involvement from its draft precisely to avoid this possibility.

The main philosophy behind the law is to help transform Egypt from a police state into a civil, democratic state governed by the rule of law. With regards to the composition of the coordination committee, the draft allows the relevant minister to appoint half its members, while the other half would be chosen by an elected body (the National Federation for Civil Society). It would be normal for the competent minister to consult with other ministries as part of inter-agency coordination, which also exists in other democracies. But regardless of the composition of the committee, the law limits the control of any of its members over the NGOs by adding a condition that the decisions of the committee must be based on legally accepted reasons. The activities that are considered "illegal" are clearly listed in the law -- the creation of military or paramilitary formations, targeting profit, and partisan political activities.

Another concern raised by the 40 Egyptian NGOs was that the bill "limits the right of associations to develop the financial resources necessary to pursue their activities by making their right to collect donations conditional upon completion of a process of notification and the subsequent approval of the administrative authorities." This interpretation is simply inaccurate: The bill permits NGOs to freely collect donations from Egyptians inside and outside Egypt, and from foreign residents in Egypt. It requires only "notification" in case of foreign donations.

Similarly, the statement complains that the draft law "would require organizations to notify the Coordinating Committee and to receive its official approval before receiving foreign funding." It is as if the statement's authors are seemingly calling for the unrestricted flow of foreign funding into Egypt, without any tracking by the government. This contradicts international norms of regulating foreign funding, which primarily aims to avoid the possibility of laundering terrorist money. As the Venice Commission, an advisory body of the Council of Europe, composed of independent experts in the field of constitutional law, stated in its assessment of the draft, "this is a necessary, reasonable, and acceptable justification for the stricter control of funding from foreign donators."

Furthermore, the law provides a number of very liberal provisions to simplify the process by which civil society organizations can work effectively in Egypt. Specifically, in order to begin work as a not-for-profit organization, and hence to benefit from various tax and other financial benefits, organizations simply have to notify the relevant administrative body. If there is no objection within 30 days, the organization is considered duly registered. Similarly, the process for receiving funding and donations has been significantly simplified.

The presidency's draft follows a very simple and important principle: The executive branch should not be the arbiter of any alleged violations of the law by civil society organizations. The draft legislation is very clear that any concerns about civil society organizations' compliance with the law must be decided by the courts. The executive simply does not have the power to ban organizations or stop their work without due process. Finally, the coordinating committee itself, which includes members selected from representatives of civil society organizations, also represents an effort to achieve a measure of transparency and accountability to stakeholders.

It is unfortunate that objections are being raised to the draft NGO law without accurate references to the actual text. We urge everyone to read the draft legislation, which is available online, and form their own opinions.

Nevertheless, we appreciate the points raised by our friends around the world. We would like to reiterate that this is an Egyptian law that must be developed for Egypt's needs and will be vetted by Egypt's parliament. Each country meets is own needs differently. Over the last decade, we have seen many democracies struggle with how to maintain a vibrant NGO sector while ensuring that charitable giving is directed toward its intended objectives. In some democracies, the need to protect public safety resulted in opaque procedures, secret evidence, intimidation tactics, and what has been described as a "climate of fear." This law attempts to achieve the balance for Egypt without invoking any such draconian measures.

That some have chosen to be critical of the law is perfectly fine, but we need to appreciate the complexity of the situation. Egypt is going through a transition from 60 years of autocracy to a nascent democracy. President Morsy is acutely aware of the importance of civil society organizations in fostering a healthy political transition, and this law is one part of reshaping the legal and cultural environment to better support our emerging democracy.

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