The right call on the NSA
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But before even releasing the 308-page report by his Review Group on Intelligence and Communications Technologies, Obama rejected one of the proposed reforms: ending the practice of having one person head both the NSA and the Pentagon’s Cyber Command. So much for hopes that the line between military operations and intelligence programs, deliberately blurred after the 9/11 attacks, might be returned to reasonable sharpness.
The headline recommendation from the five-member review group is that the NSA should stop compiling a comprehensive record of our phone calls. This program of blanket domestic surveillance, revealed by whistleblower Edward Snowden, is the most egregious and controversial of the spy agency’s programs that have come to light.
In plain language, the panel lays out just what the NSA has been doing: obtaining secret court orders compelling phone service providers to “turn over to the government on an ongoing basis call records for every telephone call made in, to, or from the United States through their respective systems.”
That is a jaw-dropping sentence. No less stunning, however, is the panel’s assessment of the program’s worth as a tool to fight terrorism: from all available evidence, zero.
“Our review suggests that the information” obtained by searching the phone data “was not essential to preventing attacks,” the report says. Moreover, the information “could readily have been obtained in a timely manner” through other means less destructive of privacy.
The report notes that phone companies already keep “metadata” — a complete log of calls — and says that is where the information should remain, or perhaps with a third-party private firm. When the NSA has a specific reason to look at the data, the agency should go to court and obtain a warrant for a targeted, limited search.
I should note that the members of the panel are impeccably hard-nosed. They are Richard Clarke, chief counterterrorism adviser on the National Security Council in the Bill Clinton and George W. Bush administrations; Michael Morell, a 33-year CIA veteran who retired as deputy director this year; Geoffrey Stone, a University of Chicago law professor who has written extensively about government security; Cass Sunstein, a Harvard law professor who irked progressives when he was Obama’s regulatory czar from 2009 to 2012; and Peter Swire, a Georgia Tech professor who was chief counselor for privacy at the Office of Management and Budget under Clinton.
When those names were announced in August, critics complained that Obama had stacked the review group with insiders who would rubber-stamp the administration’s policies. Apparently, nobody told the panel.
The thrust of the group’s recommendations is to bring the post-9/11 practices of the intelligence establishment back into closer alignment with our legal traditions and values. The panel suggests, for example, that proceedings before the secret Foreign Intelligence Surveillance Court be adversarial, like other court hearings. Currently, only the government’s case is presented to the court. The panel suggests that Congress should create the post of “Public Interest Advocate” to appear before the court and represent the interests of privacy and civil liberties.
The group also had doubts about some of the liberties that the NSA has taken in the surveillance of foreigners. When the agency wants to eavesdrop on a foreign leader — German Chancellor Angela Merkel comes to mind — it should obtain high-level approval beforehand, rather than leave the president in the dark.
Perhaps most fundamental is the recommendation that “the National Security Agency should be clearly designated as a foreign intelligence organization; missions other than foreign intelligence collection should generally be reassigned elsewhere.” This idea may be resisted by Obama and the NSA, but it is key.
Somehow, the NSA has transformed itself from an agency whose mission was overseas surveillance to one that vacuums and stores massive amounts of information about our private communications. This isn’t mission-creep; it’s more like mission-gallop.
Unless we want to accept an Orwellian future in which privacy is a distant memory — and I don’t — we need to limit the NSA’s authority to surveillance of legitimate foreign targets.
A presidential order isn’t enough, because future presidents could change it. Congress needs to pass a law telling the agency, in no uncertain terms, what it must never do.
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