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Snags Slow Formation of Surveillance Review Group

Snags Slow Formation of Surveillance Review Group

By Alexis Simendinger - August 23, 2013

President Obama’s decision to create a new expert group to weigh national security surveillance, government secret-keeping, and the public trust has prompted internal headaches, leaks, and plenty of second-guessing from critics.

“This investigation, run out of the executive [branch], certainly can’t come to any unbiased conclusions” about government access to Americans’ phone and email communications, Electronic Frontier Foundation Policy Analyst Mark Jaycox told RCP. “It’s time for Congress to exert its own powers as a coequal branch of government and leave no stone unturned.”

The White House may announce the members of Obama’s new Review Group on Intelligence and Communications Technologies as early as Friday. Or maybe not.

The president first described this new advisory entity during an Aug. 9 news conference in which he said, “The question is, how do I make the American people more comfortable” with the National Security Agency’s programs?

Obama elaborated on the group’s assignment in a memo Aug. 12, without naming any of its members. The same day, James Clapper, the director of the Office of National Intelligence, issued a statement saying he would set up the group. Then the National Security Council stepped in and said au contraire -- the advisory group would be independent, chosen by the White House, and Clapper would not be a member.

On Wednesday, White House Deputy Press Secretary Josh Earnest said the president’s team was “actively” working to name advisers. In roughly eight weeks, Obama expects the group to probe the government’s secret surveillance programs, including those programs revealed by former government contractor Edward Snowden, before making preliminary recommendations to the president. By Dec. 15, he expects to see a final report.

“Putting together an outside group like this to examine some of these issues and to examine their impact on the programs is an example of the president's efforts to further refine these programs in a way that will strengthen public confidence in them, and therefore strengthen the programs altogether,” Earnest said.

Hours later, ABC News reported online (with veiled attribution) that Obama planned to name as members Richard Clarke, a counterterrorism expert who served four presidents; former CIA Deputy Director Mike Morrell, who resigned this summer; former White House regulatory adviser and Harvard professor Cass Sunstein (husband of U.N. Ambassador Samantha Power); and privacy law professor Peter Swire, a senior fellow at the Center for American Progress. An announcement was expected Thursday, ABC added.

But on Thursday a White House spokeswoman told RCP the group’s members would not be announced that day, adding, “We expect to be able to announce soon.”

Various observers have noted that to accomplish a credible review or investigation on such a tight schedule, all members of the group would presumably need appropriate security clearances. That might limit the picks to current and recently departed government employees, rather than advocates for civil liberties, technology experts, and corporate innovators who might lend the group a public stamp of “independence.” Top-security clearances usually require months of investigation before they are granted.

Privacy and transparency advocates are dubious that Obama’s group can independently examine potential or actual abuses of data collection by December, especially in light of national anxieties about future terrorist attacks. They suspect the White House wants to buy time in an effort to stave off congressional investigators before lawmakers head home at the end of the year.

“Given that one of the major challenges the government faces right now is restoring the public’s trust … this outside group of experts must both be truly independent and remarkably transparent in its work,” said Sascha Meinrath, vice president of the New America Foundation and director of its Open Technology Institute.

“The review group must include well-known outside tech policy experts, and be able to report both to the president and to the public,” he said. “To rely on so-called independent contractors, many of whom are making millions of dollars off of the cyber security-industrial complex already in place, would undermine the president’s goals.”

NAF said it opposed the appointment of members who are involved with or profit from government surveillance programs. Meinrath urged Obama to choose widely to hear from public interest experts, civil rights legal authorities, and what he called “independent technology experts.”

Many privacy advocates are critical of telecommunications and Internet companies that are cooperating with the government to provide access to massive amounts of communications data in the United States and abroad.

There is no indication that Obama seeks to allay public worries about NSA surveillance programs by naming current or former lawmakers who have intelligence expertise to serve on the panel. The administration is particularly concerned that Congress, responding to media accounts of domestic phone and email snooping, will succeed in reining in the intelligence community through appropriations or changes to existing surveillance laws.

For example, Sen. Ron Wyden, D-Ore., a member of the Senate Select Committee on Intelligence and a frequent critic of the NSA, had not been invited by the White House to be a member, a spokesman told RCP Wednesday. Wyden said this month that recent government confirmation of its violations of laws and rules governing Americans’ privacy “is just the tip of a larger iceberg."

Obama explained the group’s task while emphasizing national security and foreign policy. Against those priorities, he said the panel of reviewers will weigh the risks of public disclosures such as Snowden’s, as well as the aim of enhancing public confidence in government.

“The Review Group will assess whether, in light of advancements in communications technologies, the United States employs its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while appropriately accounting for other policy considerations, such as the risk of unauthorized disclosure and our need to maintain the public trust,” he said Aug. 12.

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com. Follow her on Twitter @ASimendinger.

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