Yes, Congress and the president are responsible for the surveillance state
There is an emerging theme on the left that the true blame for our metastasized domestic spying programs lies with the American people. John Cole put it bluntly (via): "No, you want to see the villain, look in the mirror." Charles Pierce was a little more diplomatic:
You can argue -- and I have -- that we all tacitly consented to this kind of thing when we allowed our legislators to pass the Patriot Act without facing any substantial pushback at the polls, and that we all continued to consent to it by not making it a bigger issue in our politics than we have.
This is an unusual framing, something we don't use in just about any other context. Do we say to the long term unemployed: You tacitly consented to your unemployable state by allowing legislators to pursue contractionary policies?
After the Citizens United ruling did anyone say: The American people are responsible for the campaign finance mess, because they voted for the representatives who nominated the judges who etc? How about the abuse of the filibuster in the Senate? Blaming citizens for gradually developing systemic problems in Washington that only reveal themselves over time is absurd. It seems to me the primary responsibility lies with those who are creating and supporting these problems.
The electorate does have a role to play, but its ability to force changes is time- and process-constrained, at least on the big issues. For instance, the most effective citizen response to Citizens United would be a Constitutional amendment declaring that corporations are not people. Such an effort doesn't happen overnight though; it takes a lot of people working over a long period of time.
The same is true with domestic spying. Citizens are just now learning the roughest contours of it. Like Citizens United it hints at a deep rot, something that will require a remedy on the order of a Constitutional amendment. Saying in the wake of the first emerging details that it's citizens' fault for not fixing institution-spanning corruption is crazy.
Another silly aspect of this critique is its over-simplification of electoral politics. Candidates run for office on platforms - whole bundles of positions. Voters don't get to pick and choose elements of different platforms and construct their ideal candidate. They choose who aligns best with their beliefs, and that can mean voting for someone with objectionable positions on certain issues.
Sometimes none of the candidates will have a palatable stance on an issue. If you think Wall Street has not been properly investigated for the financial meltdown of 2008, who do you vote for? In, say, last November's presidential election, which candidate was promising to crack down hard on Wall Street? If that was your most important issue, who should you have voted for? Yet presumably greedy and sociopathic bank executives, captured regulators and timid politicians are not the problem. Look in the mirror, right?
Civil liberties will never have a critical mass of popular support; they will always need principled support inside government. Someone who has been out of work for six months or can't afford to have that worsening ache checked by a doctor is not going to prioritize the Fourth Amendment. The need for enlightened support is, again, not controversial in other areas.
A year after the Supreme Court's Loving v. Virginia decision, roughly three fourths of Americans disapproved of interracial marriage. The idea that a policy that polls well must be continued is strange. (Though Nate Silver wonders just how substantial that support is given that the public is mostly in the dark on the details.)
The blame, long term, over decades, does indeed lie with the populace. But short and medium term, it belongs to those implementing the policy. That means George Bush and Barack Obama, as well as the Congresses that have so readily acquiesced to executive branch power grabs. In fact, Congress should probably get the biggest share of the blame for the current mess.
We seem to have stumbled upon an Achilles heel in our system of checks and balances. A branch of government will not jealously guard that power which there is no political benefit in exercising, and will give away those powers whose exercise is politically detrimental. Congress may theoretically have oversight of the surveillance state, but only bad things can come from exercising that oversight. How should we expect that to turn out? About the way it has: With stupidly named Gangs that are constrained to the point of uselessness, and an institutional aversion to doing anything hard.
That last point is not just true of intelligence oversight. In his new book Dirty Wars, Jeremy Scahill quotes (extended excerpt here) Colonel Douglas Macgregor about Congress' meekness toward the Cheney/Rumsfeld-era Department of defense: "We have no interest in the Senate, in holding anyone accountable and enforcing the laws." Taking positions that are widely unpopular or that create friction with one's acquaintances takes a certain amount of spine. Any system that requires courage might be fatally flawed. But the lion's share of responsibility for abuses still goes to those who abdicate or unjustly seize power.
The House Permanent Select Committee on Intelligence would eventually conclude that the Pentagon had "shown a propensity to apply the [Preparing the Battlespace] label where the slightest nexus of a theoretical, distant military operation might one day exist." For some career army officers who had served in the conventional military, the developments they were witnessing inside the Pentagon felt ominous. "We know that the Geneva Convention was thrown under the bus, so to say, pretty early," Colonel Douglas Macgregor told me. Macgregor was a decorated army officer who led the most famous tank battle of the 1991 Gulf War. He was on the Pentagon team that was charting out the early stages of Iraq War planning in 2001 and 2002. He said he was disturbed by what he was witnessing inside the DoD as Cheney and Rumsfeld began building up the SSB and JSOC. "To be perfectly blunt with you, I stayed away from it. I didn't want to be involved in it, and I wasn't interested in participating in it, because I had this fear that we were ultimately breaking laws," he said. "Whether those laws were our own, or they turned out to be the Geneva Convention, or the 'Law of War' as we in uniform call it. One would have expected someone to stand up and say, 'I'm sorry, Mr. Secretary, Mr. Cambone, General Boykin, you don't have the authority to suspend the Geneva Convention. That has been ratified by the United States Senate.' But, we have another problem. We have no interest in the Senate, in holding anyone accountable and enforcing the laws," he asserted. "So if you have no one in any branch-whether it's judicial, legislative or executive-who's interested in upholding the law, then you can do pretty much what you want. And I think that's ultimately what's happened."