If civil liberties advocates had hoped an expert panel’s call for an overhaul of America’s approach to surveillance might finally open the door to serious reforms, it appears they’re about to be disappointed yet again.
President Obama’s handpicked surveillance review group, a mix of legal scholars and former government officials, has called for major intelligence policy changes — and on Wednesday, testifying before the Senate Judiciary Committee, reiterated their unanimous opposition to the government’s bulk collection of American phone records. Yet early reports suggest that the president will reject their key recommendations in a speech he is slated to deliver this Friday, instead offering a bland array of cosmetic tweaks to the intelligence process.
The panel members themselves may have sensed which way the wind was blowing: At Wednesday’s hearing, they repeatedly stressed that they were not calling for an end to the National Security Agency’s controversial phone metadata program, but only a “change in approach.” Yet the distinction is largely semantic. Number one on the review group’s list of 46 recommendations (PDF) is a return to the traditional, particularized method of gathering phone records: When the government has evidence linking specific phone numbers to terrorism, it should seek individual court orders to obtain those records from the phone companies, rather than giving NSA analysts direct access to a database, with the authority to determine which numbers to search. In other words, exactly what the government has always had the ability to do without a bulk metadata program.
NSA defenders such as Dianne Feinstein (D‑CA) and Jeff Sessions (R‑AL) did their best to spin the panel’s conclusions in their favor, largely ignoring the group’s detailed 300‐page report in favor of a Washington Post op‐ed by panel member and former CIA official Michael Morell defending the value of collecting phone records. Yet even Morell rejected the familiar talking point that such records were “just metadata,” and therefore raised none of the privacy concerns associated with eavesdropping on the contents of calls. “There’s a lot of content in metadata,” Morell told the committee, “There’s not a sharp difference between metadata and content… It’s more of a continuum,” because sophisticated analysis of communication patterns can often reveal as much about peoples lives and activities as the substance of what is communicated.
Morell did lend some support to another favorite NSA talking point: That if the metadata program had been in place before the attacks of 9/11, the plot might have been prevented. But as former counterterrorism czar Richard Clarke pointed out, the 9/11 plot went undetected because of a failure to share information the NSA and CIA already had. University of Chicago Law professor called claims that it would be too cumbersome to acquire such information with specific court orders “wholly unconvincing,” saying there was “no reason” the government would need unfiltered access to a database of all phone records in order to effectively monitor terror networks. As the panelists all agreed, there was no evidence the metadata program had provided any unique intelligence that could not have been obtained by that more traditional method, nor that it had played a critical role in stopping any terror attacks.
Many of the panel’s most significant recommendations, however, were barely raised at the hearing at all. The proposal to end the FBI’s use of National Security Letters to acquire records without judicial approval received only a passing mention. The review groups’s analysis of NSA’s Internet surveillance powers, including its endorsement of a ban on warrantless querying of NSA databases for the communications of Americans, was glossed over entirely. Nor was there any discussion of the group’s strongly‐worded condemnation of efforts to undermine widely‐used encryption standards, which have horrified many security experts.
The administration has signaled its willingness to embrace some more minor procedural reforms: Greater transparency about the scope of government surveillance, and the creation of a civil liberties “advocate” to argue before the secret Foreign Intelligence Surveillance Court. But these are changes the president appeared willing to adopt even before the review group issued its report. Americans could be forgiven for wondering whether there was any point to appointing a group of experts to conduct such an extensive analysis if the president is going to ignore their advice, except when it matches what he’d already decided to do.
That may explain why the president’s speech is scheduled in advance of the separate report on surveillance being prepared by the Privacy and Civil Liberties Oversight Board. Ignoring one set of expert recommendations is awkward enough; ignoring two would make it even more obvious that the president is unwilling to seriously reign in his own intelligence agencies.