December 19, 2013
Director of National Intelligence (DNI) James Clapper, right, testifying before the Senate Intelligence Committee during the annual open hearing on worldwide threats on Capitol Hill in Washington. (AP Photo/Susan Walsh)
Director of National Intelligence James Clapper (Susan Walsh/Associated Press)

People who defend the National Security Agency’s (NSA) surveillance program reacted swiftly and negatively to the review board panel. A former senior U.S. intelligence official called it represent of a “pre-9/11 mindset.” He described the reaction of the intelligence community: “No abuses found. Lives saved. Stopped to placate a traitor.”

Some of the concerns are meaningless (or already a matter of practice), and others are harmful. Let’s focus on the latter.

The restriction on retention of metadata is problematic. Data that may not seem relevant when it is collected may, years later, be useful. We are, in the absence of real instances of abuse, making the intelligence collection and analysis less agile.  The Post noted, “Moving custodianship of the records outside the NSA would diminish the agency’s agility in detecting terrorist plots, supporters of the current arrangement say. With companies holding data for different periods and in different formats, searching across them would become complicated, they argue.” The former official said, bluntly, “Do not pretend it doesn’t matter.”

Likewise, purging rather than segregating information incidentally collected on U.S. citizens may have disastrous consequences if those U.S. citizens later become relevant to a security threat. By minimizing the extent of data collected, we return to the limits, barriers and interrupted information flow that we, in the aftermath of the Sept. 11, 2001, terrorist attacks, determined were hazardous.

Equally harmful is the limitation on national security letters and the requirement to get court approval for each separate database inquiry (this is not really the contents of the transmission, which requires individualized suspicion). Steven Bradbury, a former Justice Department lawyer, testified in October to the House Intelligence Committee that such a “requirement would place a significant restraint on the speed and flexibility of the program, and, if applied to second and third ‘hops’ from the original seed number, would throttle the utility of the program entirely. Moreover, requiring court approval of each reasonable articulable suspicion determination would impose a legalistic judicial overlay on a judgment that is more appropriately made by seasoned intelligence analysts.”

Other recommendations would take the information assurance directorate in charge of working with industry on cyber-protection out of the NSA. This is back to the old silo problem — separate groups unable to access what other groups learn — that was identified as a systemic deficiency in the post-9/11 report. (Ironically, one of the primary critics of our pre-9/11 anti-terror intelligence was Richard A. Clarke, one of the panelists who came up with the new recommendations.) If the information assurance directorate learns of new cyber-threats and techniques, it presumably would have barriers to disseminating this back to the NSA.

Likewise, the prohibition on subverting or weakening commercial software in order to get around encryption is nothing less than unilateral disarmament when it comes to foreign adversaries. Even if we stop doing it, the Chinese won’t.

Some of the recommendations are vague, posing a problem of definition and questions of implementation. The requirement for an advocate in the Foreign Intelligence Surveillance Act court doesn’t make clear whether such a person would be there for general oversight to certify to the program’s usefulness or to second-guess each decision. If the latter, we are making the system — again, which worked well — more cumbersome and adversarial.

The president isn’t obligated to accept the recommendations. In fact, it is damning of the program he administered and executed. Is he thrilled to be told he has been running the entire intelligence-gathering program incorrectly with insufficient concern for national security? The irony is that the panel found no abuse. Certainly the president and the intelligence community have every reason to be skeptical of the report and evaluate whether we are damaging national security for no reason other than media hysteria. Ben Wittes of the Brookings Institution has the clearest articulation of this I’ve yet seen:

Whether you read this as a rejection of bad policy by an independent group that did exactly what Obama asked it to do or  less favorably will probably depend on where you started on the issues. But this presumably was not the report Obama was imagining when he asked this group to take this on.  . . . For Obama knows that—whatever the merits of the issues in question — his job just got a lot harder because of a review he commissioned and empowered.

To put the matter bluntly, there is no way the administration will embrace a bunch of these recommendations. And from this day forward, any time the White House and the intelligence community resist these calls for change, the cry will go out that Obama, in doing so, is ignoring the recommendations of his own review panel. And the cry will be right. The White House declares that “Over the next several weeks, as we bring to a close the Administration’s overall review of signals intelligence, the President will work with his national security team to study the Review Group’s report, and to determine which recommendations we should implement.”

The House and Senate intelligence committee chairmen also will be highly skeptical of the report. In a curt statement, House Intelligence Committee Chairman Mike Rogers (R-Mich.) already declared, “Though I am still studying the details, I have serious concerns with some of the report’s 46 recommendations. Any intelligence collection reforms must be careful to preserve important national security capabilities. I look forward to working with my colleagues in the Congress to enact meaningful reforms in the near future.”

Like Rogers, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) has been a responsible defender of the NSA program. In response to the much-criticized district court ruling holding the program unconstitutional, she issued a detailed rebuttal pointing out that the ruling “differs from those of at least 15 separate federal district court judges who sit, or have sat, on the FISA Court and have reauthorized the program every 90 days — a total 35 times in all” as well as another district court judge from California. After pointing out that the Supreme Court will have the final say, she noted, “Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack. I believe the program can benefit from additional transparency and privacy protections — including additional public reporting and added court review provisions which were recently adopted by the Senate Intelligence Committee in the bipartisan FISA Improvements Act.”

Feinstein, Rogers and informed administration officials and intelligence professionals should figure out if there is a problem to be solved and, if so, which solutions won’t jeopardize national security. It is they who will be held responsible if a national security failure results in dead Americans. As Feinstein noted in a November op-ed:

One program that helps prevent another terror attack — but continues to be mischaracterized — is the National Security Agency’s call-records program. This program does not collect the content of calls but rather the type of information found on the average cell phone bill: phone numbers of calls placed and received, the time calls are placed, and their duration. . . . [T]he world is a dangerous place, and if we end this vital program, I believe the result will be a nation more vulnerable to another devastating terrorist attack. While the overwhelming majority of these records are never looked at — and are regularly destroyed — the program has proven successful in connecting the dots and helping to prevent terrorist attacks.

Well said. She needs to keep sounding the alarm.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.