Surveillance: Snowden NSA Controversy

Assessing the Review Group Recommendations: Final Thoughts

By Benjamin Wittes
Monday, January 13, 2014, 8:16 AM

On Friday, President Obama is scheduled to announce his response to his Review Group on NSA matters, whose report I have been evaluating in this series of posts. The Review Group report covers a huge range of ground, some of it very much in the weeds, so the posts have necessarily lived in the weeds as well. Here, however, I want to try to break through to higher ground and talk at the 40,000-foot level about what the Review Group did well and what it did badly---the merits of its report being dramatically uneven.

On the good side, the Review Group report offers a lot of sound ideas. It thinks boldly. And it offers the President cover for dramatic change to the extent he wants to pursue it. It also just might provide a roadmap for a compromise over Section 215 and bulk metadata collection. I personally think the merits of its proposed solution to the problem---having the metadata stored by either the telecommunications companies or by a private third-party actor but still accessible with an order from the FISC---is suboptimal policy that yields a net civil liberties loss from the status quo. That said, it just might provide a workable political accommodation that allows bulk metadata retention to continue while alleviating concerns about government acquisition of large quantities of personal data. Individual recommendations of the report, moreover, could be valuable across a wide range of areas the Review Group treated.

That said, I think on balance the Review Group did the President, and the country, a disservice. The first problem with its work is its grandiosity. The Review Group---with only a few months, a tiny staff, and a politically explosive topic---took on the entire world of intelligence reform: everything from the structure of the bureaucracy to how to better protect secrets to the substance of privacy law to 215 to 702 to national security letters to internet governance to encryption policy to what sort of person should serve as director of NSA. It issued 46 recommendations on subjects of incredible complexity, few of which it developed fully, leaving in many cases a great deal of opacity about what it was recommending and why. The Review Group report often has the feel of a committee of very smart people getting together and amalgamating their particular obsessions without doing the work of prioritizing them. By erring on the side of underdeveloped inclusion, the group undermined gravely the force of its work. It larded this discussion with a huge amount of unnecessary verbiage. The result is a weird combination: A document that is at once aggravatingly long-winded yet simultaneously badly underdeveloped.

Second, the group clearly gave insufficient attention to the question of the cumulative impact of its many recommendations---insufficient meaning none. Former NCTC director Michael Leiter addressed this point in his piece the other day with respect to the public discussion of the report, but his point applies equally to those who produced the report:

perhaps most “under discussed” is how the recommendations would in combination affect intelligence collection and national security.  Greater involvement by judges, a far more adversarial Foreign Intelligence Surveillance Act court, more oversight by the Office of Management and Budget, an operational President’s Civil Liberties Oversight Board, privacy assessments on all intelligence operations, and the like may sound good in isolation---but they can combine to form a deadly and inefficient bureaucratic mix.  And we must remember that these newly recommended steps would not stand alone, but instead be layered upon the already existing scores of Inspectors General, Offices of General Counsel, the President’s Intelligence Advisory Board, the Intelligence Oversight Board, the Office of the Director of National Intelligence, numerous privacy and civil liberty offices, and Congressional oversight.

It is impossible to predict precisely the effect of this additional oversight.  What is clear, however, is that these additional layers will almost certainly have an intelligence “cost” even if they simultaneously produce a transparency and privacy “benefit.”

I think this is right. There's a danger here of layering so many individually-sound ideas on top of one another that you create an unworkable monster. I suppose in the Review Group's defense, one might say that their job was to come up with reform ideas, not to think through what would happen if you actually tried to integrate them all, but this argument leaves me a bit cold and it goes back to the problem of prioritization. If each of 46 recommendations is equally important, then none of them is really important at all. The group would have done far better to make, say, five or 10 recommendations, develop the argument for each thoroughly, and think through the implications of actually implementing them---the implications both individually and in combination with one another.

Finally, as I noted at the time of the report's release, I think the Review Group has not simplified, but greatly complicated, President Obama's dilemma. To whatever extent the White House and the intelligence community resist the many calls for change in the report---and they will have to resist and ignore many of them and eviscerate many more in the embrace of them---the cry will go out that Obama, in doing so, is ignoring the recommendations of his own hand-picked review panel. That is already happening. When Obama went on vacation without adopting all of the recommendations, the New York Times blasted him editorially:

By the time President Obama gave his news conference on Friday, there was really only one course to take on surveillance policy from an ethical, moral, constitutional and even political point of view. And that was to embrace the recommendations of his handpicked panel on government spying---and bills pending in Congress---to end the obvious excesses. He could have started by suspending the constitutionally questionable (and evidently pointless) collection of data on every phone call and email that Americans make.

He did not do any of that.

There's going to be a political consequence for every recommendation Obama does not adopt. And there is thus an interagency battle over the implementation of a bunch of them. Perhaps this was the report Obama wanted and needed to get done the far-reaching changes he actually wants to bring about. I doubt it.

Moral of the story: Don't pack a review group panel with law professors and expect either brevity, focus, or political sophistication in the result.