A Fruitcake of a Report

By Joel Brenner
Friday, December 20, 2013, 8:15 AM

The Report of the President’s Review Group on Intelligence and Communications Technologies is, like many such reports, a fruitcake. It’s chock full of tasty cherries---and other bits that are nuts. You have to pick out what’s what. Asking for an overall assessment is a disservice to the possibility of intelligent conversation. But this week, after futile attempts at subtlety with CNN and The Washington Post, my only comment that made the final cut was the overall assessment: If adopted in bulk, these recommendations would put us back to pre-9/11. That’s true, but these recommendations will not be adopted in bulk. Shame on me for taking the bait.

The recommendations are worth reading and many are sound in their general thrust, though not always in detail. I would welcome greater transparency of FISA Court proceedings, and I would welcome adjustments to the metadata program. The public wants operational constraints about how and when this data can be searched, and should have some. We also keep this data twice too long---five years rather than, say, 30 months. Moving the data outside NSA may also be feasible (thought doing so won’t make much operational difference).

Other recommendations, such as separating NSA’s offensive and defensive sides, are foolish. You cannot do good defense if you are not familiar with current offensive techniques. The defensive side of NSA is not a privacy organization. It’s a network defense organization, and defense is enriched by constant communication with the offensive side of the house. This recommendation is so outlandish that the President dismissed it out of hand.

He also dismissed out of hand the recommendation to split NSA from Cyber Command and make the NSA director a civilian. Joining these two positions creates definite operational advantages (as I explained in a previous post), but it also creates enormous power in one person. The proposal merits study by the intelligence and armed services committees. It is not ready for immediate decision.

Groups make compromises, but compromises don’t require a journey to La-La Land. But that’s where the review group went when it recommended that we treat foreigners and U.S. persons alike under the law. You can file this under “smoking funny cigarettes” or “utopian” depending on your inclination. It would put an end to much of what intelligence agencies do, and it’s a non-starter. What would make sense, however, would be negotiated, mutual arrangements with several close allies outside the “Five Eyes” group, chiefly Germany and France. But the fundamental principle here must be mutuality, a concept that astonishingly does not appear in a recommendation that could give foreign intelligence targets standing to sue in United States courts. What were they thinking?