David Kris: “On the Bulk Collection of Tangible Things” (Lawfare Research Paper Series)

My fellow Americans, we have achieved a major victory in the War on Law Reviews. I’m thrilled to announce the next paper in Lawfare Research Paper Series: David Kris’s “On the Bulk Collection of Tangible Things.” Kris needs no introduction to Lawfare readers. In addition to being the general counsel of Intellectual Ventures, he is the former head of the National Security Division at the Justice Department and the co-author of National Security Investigations and Prosecutions (2d ed. 2012), which was reviewed on Lawfare back in April. David has been working on a supplement to Chapter 19 of the treatise, which will be published next year, but he decided to break out his discussion of bulk collection issues under Section 215 as a standalone paper. It is, in fact, a paper unlike anything else that has been written since the Edward Snowden leaks prompted this whole flap. For anyone looking to understand the controversy over bulk metadata collection---whether you are for it or against it or have complicated views---the paper is a must read. Among other things, it contains in its many footnotes, an incredible annotated bibliography of the entire 215 debate that will function as a roadmap for anyone doing research on this subject. Moreover, Kris offers penetrating insights throughout the paper about the released documents, the propriety of the government’s position on 215, the history of the interactions with Congress and the courts---and the future of transparency in intelligence programs. He concludes:

The key remaining question is whether there will be additional, authorized releases concerning intelligence activity that has not been subject to prior, unauthorized releases. A program of increased disclosure, designed only to correct misimpressions based on prior leaks, differs from a broad embrace of transparency even in the absence of such leaks. On the other hand, if the leaks themselves are (or will be) very broad, the difference between the two approaches may shrink. As of this writing, it is not clear whether the Obama Administration intends to pursue a narrow or broad re-calibration. In public, at least, it has not clearly described the philosophical approach underlying the disclosures it has made, the limits on such disclosures, or a comparison between the current attitude and historical standards – although such thinking may well exist behind the scenes. To some observers, however, we seem to be on course for an environment in which the basic existence of all (or most) signals intelligence programs is publicly disclosed, with information about particular participants in those programs (e.g., providers and targets) still secret. That would be a very significant re-calibration. Whether and to what extent the transparency would extend still further, to other intelligence programs – e.g., those involving Humint or covert action – also remains to be seen. The effects of a broad re-calibration could be felt in at least two ways. First, official disclosures of previously classified information will resonate through FOIA and State Secrets doctrine, where the government’s litigating positions will be tested for consistency with the logic implicit in the voluntary transparency. It therefore may be difficult to predict exactly how such official disclosures may beget additional disclosures as compelled by the courts, especially in the absence of any overtly described philosophical approach. Second, and perhaps more importantly, there is a potential interaction between increased transparency and the scope of intelligence activity. Intelligence activity that helps the U.S. government when done covertly may harm it when done overtly. For example, clandestine surveillance of foreign government officials may aid U.S. foreign policy – e.g., by giving U.S. treaty negotiators insight into their foreign counterparts’ instructions. As such, foreign policy makers may support and even require such surveillance from the Intelligence Community. On the other hand, however, transparent surveillance of foreign government officials may have precisely the opposite effect, creating challenges that cause policy makers to require less surveillance. If less surveillance leads to a perceived intelligence failure, of course, resulting demands to expand surveillance may cause the pendulum to swing back. These are probably the most significant long-term questions resulting from the June 2013 disclosures: how will the United States re-calibrate the tension between secrecy and transparency, and what will follow from that re-calibration? As Justice Stewart explained in his concurring opinion in the Pentagon Papers case, the resolution of that tension requires “judgment and wisdom of a high order.” His observations more than 40 years ago seem relevant today:

I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained.

As a democracy that runs on informed public debate but also engages in classified intelligence activity, America has struggled with the proper balance between secrecy and transparency. Recent disclosures have brought that struggle into much sharper relief, and have called into question the balance struck and maintained since the 1970s. It remains to be seen whether those disclosures will yield substantial, enduring change.

I recommend this paper in the highest possible terms to anyone interested in this subject. The Lawfare Research Paper Series focuses on scholarship the editors of Lawfare believe to be useful and important to policymakers and national security practitioners. To submit an article for consideration, please email Matt Danzer.