Part II: Observations on Selected Surveillance Review Group Themes

Yesterday, I raised issues regarding the review group’s process and deliberations. Today’s post focuses on several of the major themes of the report. Tomorrow’s third, and final, post will address what may be the review group’s most important recommendation to protect national security. There is much to commend in the review group report’s high-level discussion of security and liberty, and description of the historical context of national security surveillance. Statements like, “the purpose of surveillance must be legitimate” (at p.49) may seem obvious, but, perhaps in the current environment, they are important to articulate. Along these lines, the report goes a long way in lowering the temperature of the current surveillance debate. For example, the review group took pains not to weigh in on the legality of the surveillance activities themselves. Given the legal heavyweights in the review group, they certainly could have gone in that direction and provided opinions, particularly on the 215 program. By focusing on policy recommendations (whatever one thinks of the merits of them individually), the group’s decision to limit themselves to the policy realm helps the debate by dialing down the rhetoric, which has, at times, included allegations of illegality and abuse. The report also made a deliberate effort to express support for NSA’s mission and value, which also places its recommendations in some context. The report states:

• “NSA focuses on collecting foreign intelligence information that is relevant to protecting the national security of the United States and its allies.” (at p.75)

• “…FISA put in place a system of oversight, review, and checks-and-balances to reduce the risk that elements of the Intelligence Community would operate outside of the law.” (at p.75)

• “…the Review Group found no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity.” (at p.76)

However, despite this rhetorical support for NSA’s activities, taken together, adoption of many of the detailed recommendations would leave this President with the legacy of seriously degrading the nation’s foreign intelligence collection and counterterrorism capabilities that have kept the country relatively safe during his first six years in office. From chopping the NSA up into pieces; requiring judicial approval for national security letters; halting the 215 bulk metadata program; possibly limiting the categories of information about which the NSA can collect foreign intelligence information; and adding adversarial process to national security surveillance where no such process exists in the criminal investigative context; there is a lot not to like in the report.  (I’ve previously put forth views on the 215 program, the public interest advocate, and transparency here and here. On a number of these issues, particularly 215 and the public interest advocate, the review group report does not advance the discussion much beyond the arguments that have already been aired publicly in a variety of settings; it does, however, take a position on these issues.) An additional observation is what to make of the relentless focus on “risk management.” Although not a surprise, given that one of the group’s members runs a security risk management firm, I would be interested in hearing more discussion and debate on the report’s overall insistence that a “risk management” approach is the “central task” and best approach in national security policy making. The report uses the phrase “risk management” over a dozen times. The word “risk” appears in the report over one hundred times. And yet, the report then goes on to state, “we do not want to overstate either the problem or the risks. In our review we have not uncovered any official efforts to suppress dissent or any intent to intrude into people’s private lives without legal justification.” (at p.117) Is risk management the right approach? The best approach? Maybe it is, but it seems worth thinking more about. An interesting theme that emerges in the report, although not explicitly, is re-opening intelligence reform efforts. The review group apparently came away from its task with the view  that NSA is too big, with too many different roles, and therefore the job of Director, as currently configured, is too complex; too much for one person. Accordingly, the review group recommends splintering off significant functions, streamlining NSA’s signals intelligence function, and altering both the persons eligible as well as the roles and responsibilities of the NSA Director. The themes sound awfully similar to those at issue circa 2001-2004, with respect to the job of the CIA Director/Director of Central Intelligence, and the ensuing creation of the DNI to lead, manage and coordinate the Intelligence Community. This theme of Intelligence Community management and coordination continues through the report’s recommendations to revisit information sharing policy, revise policy approval processes for sensitive surveillance collection activities, and potentially expand the PCLOB into a new agency with a broader mission. Much of the report’s value in this area centers on its theme of how to achieve “good government” when it comes to national security policymaking. It is worth noting that as we enter 2014, we also approach the 10th anniversary of the Intelligence Reform and Terrorism Prevention Act (IRTPA), which created the DNI, and the discussion of these issues perhaps brings to the forefront some worthwhile consideration of the DNI’s role on each of these fronts. Although I cannot imagine that the Administration, nor Congress, has the stomach to take on serious intelligence reform restructuring in the next two years given many competing priorities both domestic and international, I do hope that before new agencies or bureaucracies are created, consideration is given to whether, in fact, a number of these roles or initiatives could easily be taken on by the DNI, if given sufficient mandate and political backing.