When it comes to major reforms to government surveillance, intelligence and law enforcement officials’ offer is this: Nothing.
“We’re open to considering of a variety of possible reforms to the program as long as they don’t eliminate it’s utility,” Robert Litt, general council for the office of the director of national intelligence, said Monday at a hearing of the Privacy and Civil Liberties Oversight Board. Those reforms are small, such as limiting the amount of time the National Security Agency can retain data. None would address the concerns raised by civil liberties advocates and many members of Congress.
Along with Litt, several administration officials spoke before the Privacy and Civil Liberties Oversight Board, which is working on surveillance policy recommendations to present to the administration. One by one, officials from the FBI, the NSA and the Justice Department rejected every major reform proposal Congress has put forth since the scope of the NSA’s bulk data collection program was made known to the public. While administrations often don’t take public positions on legislation, the intelligence officials’ dire warnings about the consequences of even minor reform proposals suggest the administration will end up opposing any significant changes that Congress could adopt.
There are competing “reform” proposals in Congress, only one of which would end the bulk communications collection program, authorized by Section 215 of the Patriot Act. Legislation proposed by Wisconsin Republican Rep. Jim Sensenbrenner and Vermont Democratic Sen. Patrick Leahy would end bulk collection, while a separate proposal, authored by California Democratic Sen. Dianne Feinstein, would explicitly authorize it.
At Monday’s hearing, Patrick Kelly, acting general counsel for the FBI, said that ending bulk collection could lead to another terrorist attack. “We’d be less agile, we’d be less informed, we’d be less focused,” Kelly said, “as a result we’d be a lot less effective in preventing the attacks that the American people want us to prevent.” No surprise there–NSA Director Keith Alexander has said as much to Congress.
But intelligence officials also shot down other reform proposals being circulated in Congress. The Sensenbrenner-Leahy legislation would also compel greater public disclosure about the use of government surveillance powers and its impact on American citizens.
Without mentioning the legislation by name, Litt rejected the plan.
“Some of the transparency proposals are things that we simply can’t do with reasonable effectiveness,” Litt said. “Proposals for example, that require us to count things that we are not now counting and might be difficult to count present problems for us.” Among the things Litt said would be difficult to count: The number of Americans whose telephone numbers are swept up in the bulk collection orders that are renewed every three months.
Sensenbrenner and Leahy would also like to create a “special advocate” who would argue against government requests for surveillance before the secret foreign intelligence surveillance court. Litt didn’t like that idea either. Citing Republican House intelligence committee chairman Rep. Mike Rogers, Litt asked “are you going to set up a process that provides more protection for foreign terrorists than for Americans who are subject to criminal search warrants?”
The issue for the NSA’s critics is precisely that Americans’ private information is getting swept up in the search for terrorists.
Litt did say the administration would likely to be open to a proposal in the Feinstein legislation that passed the Senate intelligence committee last week, which would allow outside organizations to file amicus briefs when the foreign intelligence surveillance court hears significant cases. That proposal wouldn’t satisfy those who want the government to have a harder time getting surveillance requests approved, to ensure they’re targeting the right people.
Although intelligence community’s defense of its own activities hasn’t changed, in recent weeks high ranking Obama administration officials have publicly expressed concerns about government surveillance. President Obama has ordered a review of intelligence community surveillance practices. Secretary of State John Kerry said last week that “In some cases, some of these actions have reached too far and we are going to try to make sure it doesn’t happen in the future.” At a news conference on Monday, Attorney General Eric Holder said “simply because we can do those things doesn’t necessarily mean we should do those things.”
The administration may be seeking to assuage the public backlash against the NSA. But even if the administration’s leadership is having doubts about government surveillance, the Obama administration usually finds itself on the losing end of political knife fights with defense and intelligence communities.
Obama came into office a skeptic of drone strikes, particularly signature strikes, and has approved more than his predecessor. He was a critic of indefinite detention as a candidate and then approved it as president. As a Senator he decried President Bush’s unilateral warrantless wiretapping but has since come to see it as useful. While civil liberties and human rights groups wanted Obama to prosecute the architects of the Bush-era torture program, the president opted to “look forward,” a leniency that is not likely to be extended to former NSA contractor Edward Snowden.
So even if some administration officials are having a change of heart about surveillance, if Congress passes legislation restricting surveillance powers, chances are they’ll come around.
Adam Serwer