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Call for Spy Limits Could Ease Criticism of Obama

Call for Spy Limits Could Ease Criticism of Obama

By Alexis Simendinger - December 19, 2013

If President Obama hoped an outside expert panel could quiet public criticism about U.S. intelligence techniques in the wake of Edward Snowden’s revelations, he may get his wish, at least for a spell.

On Wednesday, a group of intelligence and legal specialists ended a two-month probe of National Security Agency practices by unveiling 300 pages of critiques, rebukes, reminders about constitutional rights and praise for whistleblowers and a free press, plus 46 specific recommendations that Obama and Congress have said they will consider … next year.

The report did not advise Obama to snap new handcuffs on the NSA, but its recommendations attracted praise from critics on Capitol Hill and from civil liberties advocates who have been urging reforms.

Senate Intelligence Committee member Ron Wyden (D-Ore.), who has grilled intelligence community officials both in secret and in public, said he hoped Obama intended to support “meaningful surveillance reforms.”

“There is a lot in this report for a reformer to like,” he said, noting his approval of the panel’s finding that NSA’s bulk phone data collection was not “essential to preventing attacks,” which was a direct rebuke to the intelligence community’s assertions during congressional testimony and in speeches. “This report will help to galvanize support for surveillance reforms both with the public and within Congress,” Wyden (pictured) predicted.

The report, intended by the authors from the outset to be publicly accessible, urges a better balance of rewards against risks and consideration of costs, including the price paid by the United States when public confidence ebbs because of counterterrorism spy programs. Specifically, the authors argued that how the intelligence community goes about its business and the array of information it collects around the world are fundamental policy decisions that should be made by the president and other senior officials with significant input and oversight from outside the intelligence community, including from the judicial branch.

When it comes to the NSA’s practice of gathering bulk information about Americans’ telephone calls, “we'd like to see the institution of judicial review before any such data can be accessed,” counterterrorism expert Richard Clarke, who served four presidents, told reporters. “And we don't see any need for the government to be retaining that data.”

Clarke was joined during a briefing for about 20 invited journalists in a downtown Washington office by co-authors Mike Morell, a CIA deputy director who resigned last summer; former White House regulatory adviser and Harvard professor Cass Sunstein (husband of U.N. Ambassador Samantha Power); privacy law professor Peter Swire, a senior fellow at the left-leaning Center for American Progress; and University of Chicago law professor Geoffrey Stone, who spoke by phone.

RCP obtained a transcript of their discussion.

In their report, the authors challenged the professed effectiveness of NSA’s hoarding of “metadata” from billions of Americans’ phone calls and the Internet as a means to catch terrorists, and argue that either private communications providers or a private third-party should retain the bulk data, should the government demonstrate legitimate needs through a judicially supervised process.

Communications companies are reluctant to be the custodians of such information, however. But the report’s authors said there was a middle ground that could be struck.

“Most of the major companies now retain the data for a period of time,” Clarke said. “And we think that it should be possible for the government to work out a satisfactory arrangement with the companies that's not significantly burdensome to them beyond what they do now.”

Even the least controversial recommendations aimed at greater transparency and privacy controls would need a green light from the president and Congress before changes could take place. By making the report public Wednesday, the White House bought Obama more time to settle on changes he’ll endorse; stirred the pot of public reaction before a distracting holiday season in ways intended to cool the fury; and started the clock anew with lawmakers in 2014.

Before personally receiving the report Dec. 13, Obama rejected the panel’s call to increase accountability by severing NSA control from the Pentagon’s cyber warfare command, both of which are now under one military leader. That early reaction sent signals to some that Obama sought to manage NSA spying as a public relations problem more than national security, economic, and management problems in search of legislative and administrative fixes.

The White House said the president’s comprehensive internal review of NSA spying will conclude in January with an Obama speech, likely before his Jan. 28 State of the Union address and after consultations with Congress.

“We give them policy direction,” the president told ABC’s Fusion channel when speaking about spymasters during an October interview. “But what we've seen over the last several years is their capacities continue to develop and expand, and that's why I'm initiating now a review to make sure that what they're able to do, doesn't necessarily mean what they should be doing.”

Both the president’s job approval ratings and measures of trust in government have taken beatings in polls since Snowden’s cascade of leaks began last summer, but the public has expressed mixed feelings about NSA’s once-secret programs, individual privacy considerations in a post-9/11 world, and about Snowden’s motives.

Obama said in August he hoped the small panel of experts he assembled would “consider how we can maintain the trust of the people [and] how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used.”

This year’s media reports in the United States and in Europe, including revelations about NSA monitoring of personal phone data of foreign heads of state, including German Chancellor Angela Merkel, angered foreign governments and forced Obama to offer Merkel and other leaders his personal assurances that U.S. snooping was not and would not involve their personal phones. Snowden’s leaks produced diplomatic repercussions with implications for the remainder of Obama’s presidency, America’s image abroad, and the commercial fortunes of U.S. technology and communications firms doing business abroad.

And the administration appears uncertain what secrets Snowden could disclose next. The European parliament recently voted to invite the exiled leaker to testify about NSA spying via video link, possibly in January.

When it comes to U.S. spying on foreigners, the review panel said the NSA should obtain the president’s and other senior officials’ say-so through a specific inter-agency process to determine what data it vacuums up.

“What is in the national security interest of the United States?” Morell asked. “What is in the economic interest of the United States? What is in the foreign policy interest of the United States? So we’re basically saying, raise it up and broaden the number of issues that get looked at when you're making these decisions.”

Obama has not publicly clarified whether he comprehended and approved of NSA spying on other heads of state who are U.S. allies, and he has not specified what changes, if any, he ordered to intelligence data-gathering in the wake of disclosures about targeting the German chancellor and other leaders.

“What we’re saying is, just because we can doesn’t mean we should,” Clarke added.

White House spokesman Jay Carney said Wednesday the president would not react this week to the review group’s report. He said Obama expected to reject some ideas proposed in the report and by various other stakeholders, many of whom have registered opinions publicly. For example, more than 107,000 people signed a petition posted to the White House website seeking reforms to the Electronic Communications Privacy Act. Earlier this week, Google executive Eric Schmidt, who was among a group of 15 CEOs who met with Obama for more than two hours Tuesday, urged the public via his Twitter account to sign the ECPA reform petition.

Obama met chief executives of leading tech firms such as Facebook, Yahoo, Twitter, Netflix, and AT&T, who have argued that NSA’s secret gathering of data about phone calls and Internet use threatened to poison public trust to a degree that commerce and perhaps the World Wide Web were in jeopardy.

The president has repeatedly defended NSA spying programs and condemned Snowden, a former government contractor who fled the United States and now lives under temporary asylum in Russia. The president has rejected calls to pardon or bargain with Snowden as a method to reel back secrets Snowden may still possess.

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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